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which the accused have bargained away constibiguity was resolved in favor of the defense.33 In a similar case, the provision as to forfeitures tutional rights or which were contrary to fair varied slightly: “To forfeit two-thirds (23) pay play and public policy. Thus, a convening for four (4) months.” The Board of Review up authority should not be overzealous in attemptheld the convening authority's approval of for ing to gain overbearing consideration from the

accused in exchange for a "break" on the feitures of $83.00 per month for four months.34

sentence. Great care should be taken in avoiding these needless ambiguities.

In the early case of United States v. Ponds,38 One further illustration of a potential source the accused attempted to enter into an "agreeof ambiguity is found in the recent case of ment" with the Department of the Navy

United States v. Clark.35 There, the contested whereby in exchange for a purported considerae provision of the agreement provided in perti tion of accelerating execution of the sentence, nent part as follows:

he agreed to waive his right to appeal the con

viction. The Court of Military Appeals deemed Sentence as approved by Convening Authority agree

the agreement to be a legal nullity. able to accused

Certainly, the execution of similar documents-how2. Confinement or Restraint

ever imposing in appearance or verbiage—will not be 10 mos. confinement at hard labor, credit will be given

considered by us as in any way affecting (the acfor the period of pretrial confinement served.

cused's) right to petition this Court for relief. We are

anxious to make this conception crystal clear to the With respect to confinement, the court adjudged

services. 39 only six months and the convening authority approved the adjudged sentence. The appellant Despite this clear and unmistaken language in complained on appeal that he should have been the Ponds decision, the high Court again found given credit for pretrial confinement pursuant occasion to condemn this type of agreement. to the agreement. The Court of Military Appeals

Particularly disturbing is the practical application held that the credit for confinement clause was

of the policy in the field. We know of at least one staff an integral part of the provision for confinement

judge advocate of a major command who represented for ten months and applied only if the court to The Judge Advocate General that his enforcement adjudged confinement of ten months or more. of the policy contemplates that, as part of a pretrial However, a blistering dissenting opinion by agreement: Judge Ferguson,36 maintaining that the clause * * * the accused normally waives counsel before the was at best ambiguous and should be resolved

board of review and agrees not to petition for in favor of the defendant, serves as a repeated

review by USCMA. Such application of the policy flies

in the teeth of our decision in United States v. Ponds, warning to those who engage in the drafting of

1 USCMA 385, 3 CMR 119, in which we held that a pretrial agreements to spell out the provisions

preliminary waiver of a right to petition this Court carefully.

for review is a nullity.40
One further suggestion may be helpful. Dur-
ing a trial by general court-martial, the law

Another type of pretrial bargain which has

been struck down occurred in the case of United officer in the out-of-court hearing on the plea

States v. Scoles, 11 wherein a pretrial agreement should carefully review the pretrial agreement

included a provision for the reduction of the to determine the accused's understanding of the

accused's sentence by a period of one year for
provisions.37 Such an express interpretation on

each occasion on which he testified against one
the record would settle the issue and alleviate
the question of ambiguities on appeal.

of the other suspects allegedly involved in the

crime. The Court of Military Appeals conILLEGAL PRETRIAL BARGAINS: AVOIDING PROVI

demned the agreement as contrary to public SIONS WHICH INFRINGE UPON THE ACCUSED'S policy, reasoning that it offers an almost irreRIGHT TO MILITARY DUE PROCESS

sistible temptation to a confessedly guilty party A number of pretrial agreements have been

to testify falsely in order to escape the adjudged condemned by the Court of Military Appeals in

consequences of his own misconduct.42

(Continued on page 14)
33. United States v. Clair, NCM 67 1538, 20 Jun 1967 (unpublished).

See also United States v. Johnson, 13 USCMA 127, 32 CMR 127 38. United States v. Ponds, 1 USCMA 385, 3 CMR 119 (1952).
(1962).

39. Id. at 387, 3 CMR 121.
34. United States v. Peifer, NCM 66 2739, 13 Jan 1967 (unpublished).

40. United States v. Darring, 9 USCMA 651, 654, 26 CMR 431, 434 35. United States v. Clark, 17 USCMA 26, 37 CMR 290 (1967).

(1958). 36. Id, at 28, 37 CMR at 292.

41. United States v. Scoles, 14 USCMA 14, 33 CMR 226 (1963). 37. See United States v. Clark, supra note 35.

42. ld. at 20, 33 CMR at 232.

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THE INTERRELATIONSHIP OF INTERNATIONAL

LAW AND UNITED STATES NAVAL
OPERATIONS IN SOUTHEAST ASIA*

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Annam, and Cochin China. These territories CAPTAIN GEOFFREY E. CARLISLE, USN** Does the United States have a legal right to be involved in the war in Southeast Asia? Would a declaration of war by the United States be legally sound? Does the United States Navy have a right to visit and search vessels in the waters of Viet-Nam? Are the participants in the war in Viet-Nam bound by the Geneva Prisoner of War Conventions? Captain Carlisle discusses these questions in this article on the

war in Viet-Nam and United States Navy participation in it. T IS A pleasure to be with you today to talk

what the Communists say it is an indigenous rebelabout the interrelationship of international

lion—then the United States would have no business law and our naval operations in Southeast Asia.

taking sides in the conflict and helping one side to

defeat the other by force of arms. You have been discussing the international law aspects of war at sea with particular em

If I understand this statement correctly, Mr. phasis on such things as a blockade, contraband,

Ball says that a state may not, under accepted visit and search, and neutrality. I'm sure you

principles of international law, intervene with have realized that the legality of these various

military forces in the affairs of another state to actions depends upon a formal state of war and protect its government against internal revoluyou may have wondered just how the actions tion. It would follow from his conclusion, with of the United States fit into this framework. which I generally agree, that the legal basis for Considering the debate going on in our country

United States action in Viet-Nam must arise you may have wondered whether we have a

from a conflict between two states. Mr. Ball's legal right to be there at all.

statement implicitly recognizes the existence of In a recent speech on Viet-Nam, Under Secre

two States of Viet Nam. tary of State George Ball posed the question

The Viet-Nam situation is an almost perfect this way:

example of how states come into being as the Is the war in South Viet-Nam an external aggression

result of customary international law and of from the North, or is it an indigenous revolt?

how, at one time, there may be two governments This is a question that Americans quite properly ask,

claiming the same territory, each of which is and one to which they deserve a satisfactory an

accorded recognition by some parts of the inter... for if the Viet-Nam war were merely

national community and is thus entitled to exer

cise some of the prerogatives of statehood. * From a speech delivered before the 14th Career Class, United States Army Judge Advocate General's School, Charlottesville, Virginia,

The question of whether or not a State of on 22 March 1966.

Viet-Nam exists is easy to answer. After **Captain Carlisle recently was the Director of the International Law

France was defeated in Europe, the Emperor of Division of the Office of the Judge Advocate General. He is now

Annam, Bao Dai, proclaimed the independence assigned as the District Legal Officer for the Thirteenth Naval District. He is a 1939 graduate of Washburn University, Topeka,

of Viet-Nam on March 11, 1942, and claimed Kansas, with the degrees of Bachelor of Arts and Bachelor of Law,

sovereign rights as Emperor over Tonkin

, and is a member of the Bar of the State of Kansas.

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At the close of the Geneva Conference in 1954, comprise the presently disputed country of

President Eisenhower announced that we would Viet-Nam.

After Japan's defeat, a Viet-Nam nationalist support the accords arrived at and would view movement disregarded the authority of the Em with grave concern any effort to disturb those

accords by force. peror and on September 2, 1945, proclaimed

By October 1954, it was clear that the United itself the Democratic Republic of Viet-Nam with

States had accepted a de facto, if not a de jure authority over the same areas.

separation of Viet-Nam into two states. On OcThe French attempted to reassert authority

tober 23, President Eisenhower expressed his over these colonies and signed an accord with

grave concern to President Diem regarding "the Ho Chi Minh on March 6, 1946, by which the

future of a country temporarily divided by an Viet-Nam Republic was a free state but part of

artificial military grouping, weakened by a long the French Union. This agreement was never

and devastating war and faced with enemies fully implemented and armed conflict broke

without and by their subversive collaborators out between the French and the Viet-Minh

within," and he assured President Diem that his (Communists).

"recent requests for aid to assist in the formidaLater, in December of 1946, the French, in a ble project of the movement of several hundred further attempt to salvage their influence, signed thousand loyal Vietnamese citizens away from an agreement with Bao Dai recognizing the new areas which are passing under a de facto rule State of Viet-Nam which incorporated Tonkin, and political ideology which they abhor are being Annam and Cochin China. This agreement re fulfilled.” tained a certain amount of French influence, At this point, it seems to me, the United States including responsibility for the new state's recognized that there was not one, but two reforeign affairs.

gimes in authority in Viet-Nam. In 1950 our State Department examined the However, the foregoing still leaves the followproblem and concluded that there was no ques ing questions unanswered. Is not the National tion but that a new state had come into exist Liberation Front, the Viet Cong, a distinct orence. It did not at that time venture an opinion ganization? And if it is, are we not on regarding the status of the Communist People's tenuous ground in our armed presence in South Republic headed by Ho Chi Minh.

Viet-Nam? By 1954, four years later, the French were The facts show that throughout the period soundly trounced and on July 24th an armistice 1954 to date, control over the Communist effort was signed. This armistice established a pro in the south has been exercised from Hanoi. visional military demarcation line. To the Many of the Communists fighting with the north of the line the forces of the People's Army Viet-Minh in 1954 were directed to remain in of Viet-Nam were to regroup while to the south the south to undermine that government. At the forces of the French Union were to regroup. least 80,000 Viet-Minh personnel were ordered

Pending reunification, civil administration in to the north for training and have since been each section of the country was assigned to the returned to the south. The Front itself was party whose forces were regrouped therein. organized pursuant to a 1960 resolution of the Obviously, there was no intention at that Communist Party in Hanoi.

It provides a time, nor in the Geneva Accords which followed, political façade for the guerrilla activity in the to divide Viet-Nam into two states. However, south. At the present time there are nine the fact is that with the assignment of adminis regiments of regular North Vietnamese forces trative responsibility over people and territory fighting in organized units in the south. The to the People's Republic of Viet-Nam, the stage actual facts show an aggression from the north was set for a de facto establishment of two and I think we can dismiss the idea of this being states. With the failure to hold elections in a revolutionary war in which we are precluded 1956, and the recognition of the Communist from taking sides. People's Republic of Viet-Nam by various na I turn now to the matter of domestic law. tions of the world, two states did come into A consideration of this problem leads to the existence, with one oriented toward communism question of the President's authority to involve and the other toward democracy.

us in affairs beyond our boundaries. There is In consonance with the policy of the United

no need to restate the constitutional provision States to contain aggressive communism, it was

which makes the President the sole organ of clearly in our interest to aid the Republic of

the United States in foreign relations. The real South Viet-Nam.

question is: How far can he go in this matter?

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It is clear to me that he can go a long way, particularly when his actions are in accordance with the long established policies of the United States.

Since World War II one of the overriding policies of the United States has been the containment of communism. Practically all of our national acts, starting with the Marshall Plan, have been directed toward this objective. It has been a prime objective of our foreign policy and one which we have pursued in all corners of the world, through all means available to us, economic as well as military.

In short, it is the policy of the United States to contain communist aggression and in this we are clearly interested in sustaining the Republic of South Viet-Nam.

In supporting the Republic of South VietNam, President Johnson has, in fact, followed the policies of Presidents Eisenhower and Kennedy. In October 1963, a Kennedy release announced additional support for Viet-Nam. The release said:

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At the time this resolution was being considered by Congress, Secretaries Rusk and McNamara carefully reviewed the whole history of the Viet-Nam situation in Congressional hearings and it seems clear that Congress was well aware of the scope of authority it was giving to the President by this resolution. Three weeks ago the Congress reaffirmed its support of Mr. Johnson's conduct of our affairs in Viet-Nam.

So far we have established the legal status of two states under international law involved in an armed aggression of one against the other. We have also established the basis in U.S. domestic law for our support of the Republic of Viet Nam.

Turning now to the actions taken by the Republic of South Viet-Nam and the United States jointly, we first should talk about the legal basis for action in defense.

Theoretically, of course, the Security Council of the United Nations is responsible for taking action to maintain or restore international peace and security whenever there are threats to the peace, breaches of peace or acts of aggression. The paralysis of the Security Council in regard to Communist aggression is too well known to require additional examination.

Fortunately, built into the Charter of the United Nations, there is a provision that permits a state to defend itself, despite lack of action by the Security Council, and to take action in its own defense without breaking the law of the San Francisco Convention. I refer, of course, to Article 51 of the U.N. Charter which provides in pertinent part:

Nothing in the present Charter shall impair the in-
herent right of individual or collective self-defense if
an armed attack occurs against
United Nations, until the Security Council has taken
measures necessary to maintain international peace
and security.

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It will remain the policy of the United States to furnish assistance and support to South Viet-Nam for as long as it is required to bring Communist aggression and terrorism under control.

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In August of 1964, as the result of attack against U.S. destroyers in Tonkin Gulf, the Congress of the United States by resolution endorsed this policy almost unanimously. The resolution reads in part:

Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled:

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That the Congress approves and supports the determination of the President as Commander-in-Chief to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.

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The right of self-defense is one of the most firmly established rights in the history of international law. The United Nations Charter merely codified the existing law. The right has been exercised on many occasions by the United States in its own affairs. The most recent serious situation involving its use was the confrontation with Russia over Cuba.

Most simply stated, this right of self-defense permits a state to take such action as is necessary to meet any real threat to its integrity as a state. The only legal restraints on action in self-defense are those of necessity and propor tionality. A state responding to a threat must tailor the response to the threat and not over

Sec. 2. The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom. (Emphasis added.)

Viet-Nam is a protocol state under the Southeast Asia Collective Defense Treaty.

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react to it. The response allowed under law is one which will abate the threat and restore the situation. It is important to emphasize this because it is undoubtedly one reason for the restraints we have imposed upon our actions in Viet-Nam.

I think it is quite clear that, after 1960, the Republic of South Viet-Nam was under direct threat of aggression from the People's Republic of Viet-Nam. The security of the state was threatened and a typical self-defense situation came into being.

In the exercise of the inherent right of selfdefense and as a victim of armed aggression the Republic of Viet-Nam was entitled to defend itself and to seek such assistance from other states as they were willing to furnish-in other words, to organize the sort of collective selfdefense effort visualized by the U.N. Charter under Article 51.

Perhaps it is well to note that although the Republic of South Viet-Nam is not a member of the United Nations it is not thereby precluded from exercising its right of self-defense. This inherent right under customary international law could not and cannot be taken from a state without its consent.

Pursuant to its right to defend itself, the Republic of South Viet-Nam sought and received assistance from the United States and other states in a collective defense effort. The recognition of collective self-defense under customary international law is both historical and reasonable. In the words of Professor Tom Mallison, George Washington University:

Throughout, our response has been designed to meet the threat created by North Viet Nam and throughout we have disclaimed any intention of doing any more than persuading the North Vietnamese to observe the Geneva Accords of 1954.

It continues to be the official U.S. position that our actions will continue only and until Hanoi decides to cease its aggressive intervention in South Viet-Nam, or until effective steps are taken to maintain international peace and security in the area.

In my opinion, it is clear that the Governments of South Viet-Nam and the United States have every legal right to continue their individual and collective self-defense against the armed aggression coming from the Communist People's Democratic Republic.

This now leads us to a discussion of our naval operations in the area. As you know, effective operations at sea are very warlike in nature, so we must consider whether or not a war, a formal state of war, exists in Viet-Nam. The official United States position was clearly stated by a State Department spokesman in a press conference on March 4, 1965. He said:

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The fact that military hostilities have been taking place in southeast Asia does not bring about the existence of a state of war, which is a legal characterization of a situation rather than a factual situation. What we have in Viet-Nam is armed aggression from the North against the Republic of Viet-Nam.

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If customary international law did not recognize collective self-defense as well as national self-defense, it would have disastrous consequences in the present highly interdependent world community. A right of national self-defense, without a corresponding right of collective self-defense, would benefit aggressor states by permitting them to attack their victims one at a time without fear that other states would aid the victim of attack. Customary international law is designed to protect real human values and, consequently, permits collective self-defense against an aggressor.

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It is not my purpose to discuss the policy decisions involved in this statement. I seriously doubt whether the present factual situation would legally support a unilateral declaration of war against North Viet-Nam by the United States. The Government of South Viet Nam has not done so. For us to have any rights under the customary and conventional laws of naval warfare, it would be necessary for the Republic of Viet-Nam to declare war and the United States to enter as a co-belligerent. Until that occurs or until the North Vietnamese actions are a clear physical threat to the United States, a declaration of war by the United States would be legally unsound under customary international law.

Obviously this situation complicates our conduct of war at sea.

Perhaps an example will make this clearer. If a legal state of war existed between the United States and North Viet-Nam we could immediately blockade the port of Hai-Phong as a belligerent right of warfare. Without a state of war, such a blockade would be of doubtful

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The actions of the Republic of South VietNam and the United States have been fully consistent with the principles I have reviewed.

The violations of the Geneva Accords by the North Vietnamese Government, both directly and indirectly, clearly demonstrated the necessity for action in self-defense, and the measured response of those engaged in the collective selfdefense effort has been clearly proportional to the threat.

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