Being intimately familiar with the conditions for guerilla warfare in Cuba, Castro would also realize that it is much easier to defeat insurgents on the high seas than after they land. Delay may require a large and expensive expedition to locate and eliminate them.

These are all factors Cuba will consider in any decision as to time and method of self-defense against insurgents, and they must be considered in any review of such a decision to determine its compliance with the requirements of international law.

V. SUMMARY AND CONCLUSIONS

Our initial question was whether the seizure by Cuba of a foreign merchant vessel on the high seas or in foreign territorial waters was permissible under the applicable principles of international law. Attempting to answer this question required investigation of two bodies of law: the international law of piracy and the international law of self-defense. Cuba's statements continually referred to the seized vessels as pirate ships; 94 however, the context of insurgent raids and landings suggest self-defense.

Cuba's competence to seize the ships outside her territorial waters, when not in hot pursuit, depends on the international rules of piracy rather than Cuba's municipal law. Applying that international law, we found that the violent nature of the acts committed by the insurgents met the criterion for piracy. While there is a substantial question whether piracy can be committed within the territory of a modern State, we concluded the better answer was that it could. International law tests the objectives of conduct to separate from all violent acts at sea those which are committed for political ends and those which are directed only against one State rather than the international community as a whole. Based on that test, the insurgents were not pirates under international law since their acts were committed to achieve political ends. Consequently, there was no authority for Cuba to seize them outside her territory. Since we found the insurgents were not pirates, we raised but did not answer the question whether Cuba had competence to adjudicate regarding the Johnny Express and its personnel seized in foreign territorial waters without a tender of ship and personnel to the territorial government.

Since the seizure was not permissible under the international law of piracy, we next looked at the international law of self-defense and whether the use of coercion in this case met the required standards of necessity and proportionality. In discussing this issue, it was found useful to picture a 94. Application of the law of piracy is advantageous for Cuba since it would permit arrest of the insurgent personnel on the high seas for the purpose of bringing them back for trial, and the ship need not be on a hostile mission at the time of seizure so long as it is still under the control of persons guilty of piracy. Article 4, HARVARD RESEARCH; article 17, High Seas Conv. Captain Villa, the master of the Johnny Express, was one of the few persons Cuba retained for trial.

spectrum of imminence. The more immediate the threat, the higher the level of coercion permissible in self-defense. Conversely, the more remote the threat, the less the level of coercion which would still be permissible under the standard of proportionality.

Next we analyzed the specific fact situation. We found that Cuba possessed a tremendous military power advantage over the insurgents. This power surplus is a factor to be considered on the imminence spectrum. However, the relative elusiveness of insurgents as a target for countering coercion must also be considered.

Cuba's objective-to prevent any landings or raids by insurgents-is designed to protect values shared by most governments. However, the methods used to obtain that objective—the seizure of vessels probably not on a mission hostile to Cuba at the time-with one vessel being in foreign territorial waters seeks to extend the scope of power enjoyed by Cuba at the expense of the power of other governments interested in the outcome, namely, the United States, Panama, and the Bahama Islands.

We considered the conditions under which Cuba presently operates in the world arena. These conditions emphasized Cuba's need to deal with insurgencies before they have an opportunity to grow.

We considered the methods used in this case and found that visit and search by a warship were permissible on the high seas in self-defense when there were reasonable grounds to suspect the vessel being searched was engaged in a mission hostile to the government of the target State. However, visit and search under the circumstances of the Johnny Express, even if on a hostile mission, would not be permissible in foreign territorial waters such as the Bahamas. The threat is not sufficiently imminent to permit that method of coercion rather than others utilizing less violence. Seizure would be permissi ble on the high seas only if the ship were carrying insurgents or their stores for a raid or landing in Cuba.

Guidelines For Trial Judges: The Two
Approaches in Argersinger v. Hamlin

Lieutenant Thomas M. Geisler, Jr., JAGC, USNR*

In his article Lieutenant Geisler compares the significantly different approach and attendant consequences of the concurring opinion in Argersinger with the opinion of the Court. He suggests that, while the rule espoused in the concurring opinion would ostensibly conserve the energies of the legal profession, such is not necessarily the case.

ONE OF THE more significant decisions during the October 1971 term of the United States Supreme Court was Argersinger v. Hamlin,1 which dealt with the right to counsel in State misdemeanors and petty offenses. Two greatly different approaches were advanced by Mr. Justice Douglas, in the opinion of the court, and by Mr. Justice Powell, who concurred in the result in an opinion joined by Mr. Justice Rehnquist. The opinion of the court set forth the following broad rule:2

[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial.

The approach of Mr. Justice Powell was markedly different, at least for petty offenses.3 Mr. Justice Powell agreed that the right to counsel existed in all cases involving misdemeanors, that is, offenses punishable by more than six months of imprisonment. However, while agreeing that "an indigent accused's need for the assistance of counsel does not mysteriously disappear when he is charged with an offense punishable by six months or less," he did agree that there was a constitutional right to counsel in every such case.*

not

* Lieutenant Geisler is currently serving as an Appellate Defense Counsel at the Navy Appellate Review Activity, Office of the Judge Advocate General. He received his J.D. degree from the Harvard Law School in 1968.

1. 407 U.S. 25 (1972). The breadth of the right to counsel in State prosecutions discussed therein a fortiori indicates the breadth of the right in Federal prosecutions. See Part III infra.

2. Id. at 37. Mr. Chief Justice Burger, though not agreeing with the entirety of the opinion of the Court, did endorse the broad rule announced therein.

3. The term "petty offense" as used by Mr. Justice Powell "means any offense where the authorized imprisonment does not exceed six months," as well as any offense "not punishable by imprisonment, regardless of the amount of the fine that might be authorized." 407 U.S. 25, 45 n.2 (1972).

4. Id. at 47.

Rather, he urged that the Court adopt, for petty offenses, a case-by-case rule that "due process" requires counsel in those instances where counsel is necessary to assure a fair trial.5

Aside from their substantive merits, the two positions illustrate greatly differing approaches in providing guidance for trial courts. Any Supreme Court or other appellate-court decision ordinarily determines the rights of the immediate parties to the suit. In addition, however, a decision provides, or should provide, coherent and manageable rules of law to guide lower courts in the myriad of complex factual situations which come before them. This, indeed, may be the primary importance of such a decision. As the late Professor Henry M. Hart once wrote:

It will be seen that what matters about Supreme Court opinions is not their quantity but their quality. And it will be seen that the test of the quality of an opinion is the light it casts, outside the four corners of the particular lawsuit, in guiding the judgment of the hundreds of thousands of lawyers and government officials who have to deal at first hand with the problems of everyday life and of the thousands of judges who have to handle the great mass of the litigation which ultimately develops.R

This article will discuss the two positions previously mentioned from the Argersinger decision, the roots of these two propositions in previous Supreme Court decisions, and the problems of practical application of the two approaches in trial courts. It will be concluded that, while both positions impose additional burdens upon the trial judge, that suggested by Mr. Justice Powell would result in considerably greater burden upon the trial judge, such as might significantly offset any savings in the use of lawyers under the latter rule.

I. ARGERSINGER AND MILITARY LAW

No final judicial determination of whether Argersinger applies to military law in general and to the summary court-martial in particular has been made as of this writing. The United States Court of Military Appeals now has before it several cases dealing with this issue. Since the issue is currently being decided in the courts, a discussion of the merits of that issue in the present article would not be of particular value. Some discussion of the positions taken by the various military services to date may, however, be of interest. In addition, a brief outline of some of the contexts in which Argersinger-related issues may arise is presented below.

The various military services have taken differing positions on the applicability of Argersinger to military law generally, and, in particular, to the

5. Id.

6. Hart, Foreword: The Time Chart of the Justices. The Supreme Court, 1958 Term, 73 HARV. L. REV. 84, 96 (1959).

7. E.g., United States v. Alderman, No. 26,342 (USCMA, petition granted, Jan. 2, 1973) and United States v. O'Brien, No. 25,970 (USCMA, petition granted, Oct. 3, 1972).

8

summary court-martial, which carries a maximum punishment of confinement at hard labor for one month in addition to other punishments. The Navy has concluded that Argersinger is "not applicable to the military court-martial, and ... no change in summary court-martial procedure is warranted." The Army, however, has made provision for counsel to be made available at all courts where confinement is adjudged.10 The Air Force has for some time provided counsel at all summary courts-martial, if requested and if reasonably available.11

At the time of this writing three civil cases dealing with the Argersinger issue which involve military petitioners are in the process of litigation. In all three cases, Daigle v. Warner,12 Long v. Warner,13 and Betonie v. Sizemore,14 the plaintiffs by writ of habeas corpus complained of illegally imposed confinement-sentences awarded by summary courts-martial which included a period of confinement at which proceedings they were neither represented, nor afforded a right to be represented, by counsel. Although Long and Betonie are still pending, the United States District Court for the District of Hawaii in Daigle held Argersinger applicable to summary court-martial proceedings and ordered the conviction of copetitioner Crosby set aside.15 The case is presently on appeal to the Ninth Circuit Court of Appeals.16

The jurisdiction of the United States Court of Military Appeals is ordinarily limited to cases involving punishment which includes a punitive discharge or confinement for one year or more.17 Thus, the Argersinger-related cases now pending before that court involve use of a previous summary court-martial in some fashion at a later special or general court-martial.18 There exist at least four distinct categories of such use:

1. As a Trigger for the "Escalator" Clause. In this context, the summary conviction is used to permit imposition of a bad-conduct discharge which could not otherwise be imposed, under the provisions of the so-called "escalator" clause of the Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, 1969 (Rev.). The situation is analogous to that in Burgett v. Texas, 19 where uncounseled prior convictions were used in connection with a recidivist statute which increased the maximum punishment at a later trial.

8. UCMJ, art. 20, 10 U.S.C. § 820 (1970).

9. Naval Speedletter JAG:202:DAM:cl Ser: 6700, dated 16 Aug. 1972.

10. DAJA message 101203Z July 72, subject: Sentence to Confinement and DAJA-MJ 1972/12684 dated 11 Aug. 1972, subject, Sentence to Confinement.

11. AIR FORCE MANUAL, 111-1, para. 3-6c, dated 26 Mar. 1971.

12. Civil No. 72-3603 (D. Hawaii, Aug. 23, 1972).

13. Civil No. 72-489-N (S.D. Calif. filed Dec. 15, 1972).

14. Civil No. 72-712-Civ-J-S (M.D. Fla., filed 4 Oct. 1972).

15. The court denied Daigle relief, finding that he had knowingly waived his right to counsel.

16. Warner v. Crosby, No. 72-2801 (9th Cir., filed 27 Dec. 1972).

17. UCMJ, arts. 66 and 67, 10 U.S.C. § 866, 867 (1970).

18. In contrast, the petitioners in Daigle v. Warner, civil no. 72-3603 (D. Hawaii, Aug. 23, 1972) sought habeas corpus relief from summary court-martial convictions.

19. 389 U.S. 109 (1967).