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taining the identity of the suspected offender, and recommending appropriate disposition. If he recommends an individual be brought to Mast or trial by court-martial, then in his judgment there is sufficient cause, supported by evidence, to believe the individual has probably committed the offense. This latter judgment and recommendation, reliably made, it is suggested, preclude a thorough and impartial review of the same facts by the same person at a later time.

Likewise, it would seem impossible to be truly objective in reviewing the legal sufficiency of the charges and specifications (an essential part of review) if the reviewer is also the drafter.

The extent to which the legal officer may participate in a case without precluding him from reviewing a summary or special court-martial arising therefrom has not been litigated. It is unlikely, except upon unusual circumstances, the issue would ever reach appellate review by a Board of Review or the Court of Military Appeals, mainly because there is no statutory requirement that such courts be reviewed by the convening authority's legal officer.

Analysis of the issue is somewhat perfected, however, by looking at the position of the staff legal officer to a general court-martial authority. Before acting upon a record of trial by general court-martial, or a record of trial by special court-martial involving a sentence of bad conduct discharge, the general court-martial authority must refer the record to his staff legal officer for review and advice. But, Article 6c of the Uniform Code of Military Justice states "[n]o person who has acted as a member, law of. ficer, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case shall subsequently act as a staff judge advocate or legal officer to any reviewing (convening) authority upon the same case.” ?

While the Court of Military Appeals has, by its recent decisions, placed certain limitations upon the application of Article 6c,8

the Court has, nonetheless, held that a staff judge advocate (or legal officer) who obtains a grant of immunity for a prosecution witness, acts as law officer in the trial of a co-accused, 10 or induces a co-conspirator to testify, is disqualified to render a post-trial review. The amount of litigation concerning the possible disqualification of a staff judge advocate (or legal officer) to review a case suggests the danger of irregularity present whenever he becomes too involved in the non-official aspects of a case. Surely it should be concluded that limitation of his activity to the statutory requirements of pretrial advice and post-trial review is the wisest practice.

And by analogy it should be concluded that if the legal officer does in fact prepare the special court-martial convening authority's review or affords the basis for that review, he should also limit his participation in the case to maintain impartiality.

In any event, however, the main thrust of this discussion is that the legal officer should maintain the same integrity in these matters as the convening authority so that the legal officer may be of best aid to the convening authority. Agreement with this point would dictate against waiting for the question to be litigated.

The application of the foregoing analysis acquires actual relevance whenever an offense is suspected of having been committed by military personnel with the command. At the moment an offense is suspected and has come to the cognizance of the Commanding Officer, he should cause a preliminary inquiry to be made into the matter. 12 From that point forward to final disposition of the matter, it must be recognized that if there is an offender, he may be punished at Captain's Mast (under Article 15, UCMJ) or he may, indeed, be tried by court-martial. Because it is not known at the time the offense is suspected whether or not a court will arise, the commanding officer, and therefore his legal officer, should take no active part in investigating the incident, or drafting or preferring charges and specifications. 13


4. The important distinction here is between the original investiga

tion and preferring of charges, on one hand, and review of that action, on the other, whether that review is prior to trial (see

UCMJ art. 34, 10 U.S.C. 834) or sabsequent. 3. The question would most likely arise if at all, in a special court

martial involving the sentence of a bad conduct discharge which requires review by a Board of Review. In such case, the issue would have to be raised subsequent to the convening authority's

action, which would be unusual and improbable. 6. MCM 1951, par. 85a. 7. UCMJ art. 6c, 10 U.S.C. 806c. 8. See United States v. Mallicote, 13 USCMA 374, 32 CMR 374

(1962); United States v. Dodge, 13 USCMA 525, 33 CMR 57 (1963); United States v. Smith, 13 USCMA 553, 33 CMR 85 (1963).

9. United States v. Cash, 12 USCMA 708, 31 CMR 294 (1962). 10. United States v. Hill, 6 USCMA 599, 20 CMR 315 (1956). 11. United States v. Albright, 9 USCMA 628, 26 CMR 408 (1958). 12. MCM 1951, par. 32. 13. In most commands, preliminary inquiries (or investigations) into

suspected offenses and the drafting of charges and specifications can be the collateral duty of an officer assigned as Discipline Officer. If the Discipline Officer is not already trained, he may become so with the aid of the legal officer, or by availing himself of a Naval correspondence course on the UCMJ. Experience has shown that only a few hours of general training by a trained legal officer, without involvement in actual cases, can produce in another officer the capability of conducting preliminary inquiries and drafting charges and specifications.

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give legal advice to the military member involved." But the Legal Assistance Officer ordinarily cannot, and can never without risk of substantial conflict, fulfill both tasks.18

The proper position in this regard of the legal officer who is not an attorney is less clear. There is no assurance that his communications with a member of the command concerning the member's personal legal problem would fall within the ambit of the attorney-client relationship.19 In this light, the legal officer who is directing a member to a Legal Assistance Officer should make clear to the member that the at torney-client relationship does not exist, so the member is not misled into believing that what ever he tells the legal officer will be privileged, that is, protected from divulgence at any trial, civil or criminal, which may result in the matter discussed.

But from the point of view of internal command administration it would seem that a nonlawyer legal officer who is responsible for establishing liaison between the member seeking advice and the lawyer Legal Assistance Officer should not be required to prepare command correspondence which might involve interests to some extent in conflict with the member's interests. In order to promote high morale and encourage members to seek advice on legal problems, it is suggested, even the general discussions between a non-lawyer legal officer and a member of the command concerning the member's personal legal problem should be treated as confidential.

As with the problem of Courts-Martial Review discussed above, the solution to this problem is more difficult to conceptualize than effectuate. If the Legal Assistance Officer in matters involving both personnel legal problems and command attention (exclusive of criminal law, excepted by regulation) 20 is thought of as if he were in the same position as a civilian attorney representing the military member involved, then the possible conflicts of interest can be avoided. Analogously, if the non-lawyer legal officer responsible for directing personnel to Legal Assistance Officers is not required in the 17, SECNAVINST 5801.1B, supra. 18. Most often, the administrative, personnel, or division officer will

be in a suitable position to prepare, or obtain the facts necessary

for, the command correspondence. 19. The argument in 8 Wigmore, Evidence sec. 2302 (3d ed. 1940)

is that the attorney-client relationship should apply in all situa-
tions where the client seeks legal advice from one who appears
to be competent to give such advice; but, while there are some
decisions which sapport this position, there is absolutely no as-
surance, absent litigation on the matter, that it would protect
the client who talked over his problem with a non-attorney mili-

tary legal officer.
20. SECNAVINST 5801.1B, supra.


The problem here invokes a description of the
other part of a lawyer legal officer's primary
duty at a small command, and acknowledgment
of a difficulty that can arise with regard to the
non-lawyer legal officer. In addition to advis-
ing the commanding officer on legal matters, the
lawyer legal officer is usually charged with act-
ing as Legal Assistance Officer which involves
providing advice on personal legal problems to
members of the command.1: The non-lawyer
legal officer, unqualified to give legal advice be-
cause he is not an attorney, may, nonetheless,
and usually does, have the responsibility of di-
recting members of the command to a Legal As-
sistance Officer (attorney).

If the Legal Assistance Officer, acting in that
capacity, consults a member of the command
concerning the member's personal legal prob-
lem, he establishes with the member an "attor-
ney-client” relationship, and the Lawyer's
Canons of Ethics require that an attorney not
divulge matters discussed with the client 15 nor
act any way other than in the client's best

The foregoing duty of the Legal Assistance
Officer, however, may in some situations come
in conflict with those duties thought to be the
legal officer's in his command capacity because
they have "legal” connotations. For example,
any command, or the commanding officer, will
receive occasional indebtedness letters, claims
of failure of support by divorced or separated
spouses, or perhaps paternity claims, directed
against members of the command.

Such claims may or may not be meritorious,
may or may not involve the U.S. Government as
a financially interested party, may or may not
require reply to higher military authority, but
nearly always require the command's reply to
the creditor or claimant. And at the same time
the command's personnel ordinarily need legal
advice. The Legal Assistance Officer may be
well-suited to draft the reply for the command,
but he is always best suited and has the duty to
14. SECNAVINST 5801.1B, Subj: Legal Assistance Program.
15. Am. Bar. Assn. Canons of Professional Ethics, Canon 37.

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16. Ibid., Canon 6.

same circumstances to prepare command correspondence and consult the member (even though the consultation is limited, as discussed above), a necessary confidentiality will, to some extent, be preserved, and the best interests of the command will be served.

In conclusion, it should be said the limitations upon the activities of the sole legal officer in a command, like objectivity in review and the lawyer-client relationship discussed here, though they appear to be only formal and technical, have developed over long periods of time in the interest of perfecting legal due process. Experience has shown, it is submitted, implementation of those limitations can also be of special aid to command.


(Continued from page 56 ) military operations are accessible to us without the use of long and circuitous routes avoiding all national sovereignties.

If our forces and their transport can get into the Mediterranean, the nations whose sovereignty stretches the entire length of North Africa are all countries which prefer to be considered unaligned in the struggle against international Communism. To get out of the Mediterranean into the Indian Ocean area, there is an unbroken barrier of national sovereignty exercised by nations which are not mutual security partners of the United States and also prefer to be considered to be neutral or unaligned in the East-West conflict.

In the case of Africa, the west coast of which is, of course, directly accessible from the United States, most of the new nations are apt to be deeply suspicious of any military operations by any of the older western powers because they smack of colonialism. In any event, the new nations do not yet give the appearance of being willing to take active and affirmative stands on the side of either the Free World or international Communism.

On the other side of the world, the United States has military bases over which it exercises sovereignty or complete control from which we can reach any part of the east coast of Asia without having to use the territory of any other nation.

Should we desire to get into the Indian Ocean or the western side of the Malay Peninsula, the situation is much more complicated. Indonesia claims absolute sovereignty over an area extending from the middle of Singapore Straits to the boundary between what was formerly Dutch New Guinea (or West Irian as Indonesia calls

it) and the Australian administered eastern end of that island. In this huge gateway between the Pacific and Indian Oceans, Indonesia does not recognize the right of innocent passage of either foreign warships or aircraft.

It is readily apparent that for United States military forces to deploy and operate in East Africa, in the Middle East, except its Mediterranean coast, and in the area bordering on the Indian Ocean, the only way in which they can do so without a “by your leave” to any foreign nation is from bases over which the United States exercises sovereignty via high seas routes. In the gateway between the Pacific and Indian Oceans, international law recognizes Lombok Strait, Timor Strait and the sea areas between Timor and West Irian as high sea routes but their use involves very circuituous routing and may be expected to lead to a dispute with Indonesia which claims those passages as internal waters. Additionally, even though other passages through the Indonesian Archipelago which are within the national sovereignty of one or more of the adjacent nations may, under certain circumstances, be used by warships in innocent passage, international law does not recognize the right of innocent passage for aircraft.

With a full and careful understanding of the factors outlined above, it may be recognized that the only lift which the United States can be certain to be able to use under any circumstances and at all times purely at our own election is one which is capable of utilizing the long, circuitous high seas and adjacent airspace routes to many parts of the world. It must be self-sustaining during such lift, both going and returning.

These long circuitous high seas routes are apparently quite beyond the capability of air lift.

It is not intended to imply that air lift is ineffective, useless or so hemmed in by restrictions on its use that it should not be considered in national strategy planning or the design of our national military posture. To do so would be to relegate our military thinking to the Nineteenth Century.

The planners of our national military strategy are whistling in the dark, however, if they overlook the politico-legal limitations on the use of air lift. Scientists and engineers may do much to overcome the physical limitations of the airplane in carrying heavy loads long distances, but the barriers of national sovereignty in the airlanes will be with us for a long time to come. They are just as insurmountable as any of the more readily understood physical limitations on air transportation of military forces and materials.

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in the political structure of the United States. age

The sources of obligations of a U.S. military

officer to observe international law in the naStates

tional community are basically the Constitution 2 Eas

of the United States, laws passed by Congress edite

and departmental regulations. By the solemn on the

oath we take as officers we undertake to support ET CLP and defend the Constitution of the United States. oreigt

Looking to the Constitution as a source of Unite obligation, we find congressional authority routes

granted by the Constitution concerning the esIndia

tablishment and government of armies and a ombi

navy, as well as certain matters of international

law. This authority includes, inter alia, the but



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The President and the Secretary of the Navy have acted under the congressional grant of authority and prescribed regulations for the government of all persons in the Naval Establishment.26 The current regulations are U.S. Navy Regulations (1948). Similarly, the Army and Air Force have such departmental regulations.

The sources discussed above with respect to the national community apply equally in the international community. The obligations of an officer to adhere to international law in the national community would necessarily require him to abide by international law in his actions in the international community. In addition, as a general proposition, custom and treaties are the two principal sources of international law that would obligate an officer to observe international law.

Turning to the binding forces of such obligations, in the national community the principal binding force is the Uniform Code of Military Justice, which codifies certain violations of international law as crimes punishable by courtmartial. Included in this category are looting and pillaging 27 and maltreatment of prisoners of war.28

U.S. Navy Regulations (1948), violations of which are punishable under Article 92, UCMJ,29 contains some sixty-one sections prescribing a course of action for naval officers in their dealings with matters concerning international law and international relations.30 Included in this category, inter alia, are sections concerning: a. Observance of international law.31 In substance

this section of Navy Regulations places the burden on a commander to observe and to require his subordinates to observe the principles of inter

national law and the rules of humane warfare. b. Use of force against a friendly state. This sec

tion renders illegal any use of force by U.S. Navy personnel against a friendly foreign state, re

serving the right of self-preservation. c. Territorial authority of foreign nations.23 This

section of the regulations dictates scrupulous respect for the territorial authority of nations in

amity with the United States, d. Prisoners of war.

This section obligates commanders to afford humane treatment to prisoners of war.

a. To provide and maintain a navy;
b. To raise and support armies;
c. To make rules for the government and regulation

of the land and naval forces;

d. To define and punish piracies and felonies comof one

mitted on the high seas and offenses against the

law of nations; and

e. To declare war, grant Letters of Marque and ot read

Reprisal, and make rules concerning captures on

land and water.23 of th

The Constitution further provides that the ed the President shall be the Commander-in-Chief of

the Army and Navy of the United States, 24 and that the Constitution, laws of the United States made in pursuance thereof, and all treaties made under the authority of the United States shall be the supreme law of the land.25

Congress has enacted under the aforementioned constitutional grant Title 10, U.S. Code, entitled "Armed Forces", which contains the bulk of the statutory law concerning the United States Military Services. Pertinent sections include:


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a. Chapter 47 of Title 10, better known as the Uniform

Code of Military Justice, which contains certain
sections providing for punitive action for failure

to observe international law;
b. Section 121 of Title 10 which provides that:

"The President may prescribe regulations to
carry out his functions, powers, and duties under

this title."; and
c. Section 6011 of Title 10 which provides that:

"United States Navy Regulations shall be issued by the Secretary of the Navy with the approval of the President."

26. 10 U.S.C. 121, 6011.
27. 10 U.S.C. 903.
28. 10 U.S.C. 905.
29. 10 U.S.C. 892.
30. NWC International Law Studies, Newport, 1955, Chapter 1 of

31. Navy Reg., art, 0505.
32. Ibid., art. 0614.
33. Ibid., art. 0622.
34. Ibid., art. 0707.

3. U.S. Const., art. 1, $ 8.
h. U.S. Const., art. II, $ 2.
. C.S. Const., art. VI, par. 2.

The forces discussed above are binding on officers in the international community, as well as in the national community. Although nations are the normal subjects of international law and subjects of violations of international law, to a certain extent individuals are also subjects of international delinquencies. "... [T]he entire law of war is based on the assumption that its commands are binding not only upon States but also upon their nationals, whether members of their armed forces or not." 35 The laws of humanity are also a binding force on an officer although they are not dependent upon positive legislative enactment. An example of individual responsibility for violations of international law is the trial of Major War Criminals of Germany and Japan following the past great war.36

In summary, it should be readily apparent that as U.S. Armed Forces Officers we have absolutely no choice but to abide by international law. We are obligated to do so commencing with the Constitution which we swear to support and defend when we take our oath of office. It is the supreme law of the land, as are all laws and treaties made pursuant thereto. Thus, at every step down the ladder in our constitutional form of government from the Constitution, through congressional acts, Presidential directives, and departmental regulations, we are obligated to observe international law.

evidence because, due to the acts of omission by others, the accused had never been effectively advised of his rights and had been led to counsel with a non-lawyer. In reaching this conclusion, the Court again recognized the accused's right to counsel during an interrogation in these words:

However, neither does this record indicate that accused was ever expressly advised he was entitled to consult with an attorney and have counsel with him during questioning. United States v. Gunnels, supra, at ape 135. Cf. Spano v. New York, 360 U.S. 315, 3 L ed 2d 1265, 79 S Ct 1202 (1959).17

In spite of this language, however, the Court of Military Appeals has not held that an investigating agent has the duty to volunteer information concerning the suspect's right to consult counsel prior to or during an interrogation. The suspect must specifically request such information himself. This is in accord with the position of the United States Supreme Court.

The decisions concerning the constitutional right to counsel which were handed down by the United States Supreme Court during the October term of 1963 represent a significant enlargement of the scope of the constitutional protections which are afforded to persons who are accused or suspected of crimes. There is no reason to believe that this trend will stop. For example, if an accused or suspected person has the right to consult with his lawyer once the investigative process has focused upon him, must he be advised at that point that he has such a right? Indeed, is not the right to consult with a lawyer an illusory one if the suspect be not advised that he does in fact possess such a right? Would the failure of the police to advise a suspect of his right to counsel at the police interrogation then render inadmissible any statement made by the suspect during the course of such interrogation? The Supreme Court has not yet gone so far. However, the Court has now entered into a new session, and it may well be that more will be heard in this most significant and controversial area of criminal law. 17. Id. at 17, 32 CMR at 17.


From the discussion of what the Law of Nations is, and from the discussion of the obligations of a military officer to observe international law, the importance of having a working knowledge of international law is apparent. We in the military service, of all U.S. citizens who travel abroad, are in the best position to enhance the prestige of the United States, or precipitate disaster in transgressions of international law. With the status of the world today, it is our best interest scrupulously to avoid any act which would contravene international law. For to do so would most likely result in an extreme disservice to the country as well as impede progress toward a peaceful existence. 35. Lauterpacht, op. cit., supra note 13, p. 341. 36. See ibid., secs, 13a and 153a and Von Schuschnigg, op. cit., supra,

pp. 69–72.


(Continued from page 76) fluenced the accused to make an incriminating pretrial statement.

The Court held that the accused's pretrial statement should not have been admitted into


(Continued from page 70) that it may be impractical to afford the party all those rights to which he is entitled and which he chooses to exercise. In any case, the party will be permitted to examine the report and submit a statement in rebuttal. Should the party offer a plausible explanation which is contrary to a witness whom the party did not have an

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