sanctions, whether of a criminal or civil nature, were resolved invariably in accordance with the Federal viewpoint. The Center was situated in the heart of a large metropolitan area, therefore the Federal Bureau of Investigation and the Office of Naval Intelligence were immediately available, upon request, to assist in any significant criminal matters. Of course, with exclusive jurisdiction it was necessary to use the foregoing investigative agencies instead of local authorities for any offenses committed aboard the Center which were beyond the purview of the Uniform Code of Military Justice.

Upon reporting aboard the new Air Station, which is the largest Master Jet Air Station in the Navy (43,367.08 acres including fee simple ownership, avigation easements, drainage easements, agricultural leased areas and a three mile "noncommercial" belt round the peripheral limits), the first thought which occurred to the writer was its jurisdictional status. An inquiry to the District Public Works Officer resulted in the following timely reply:

The United States has at no time acquired jurisdiction over any portion of the land or land interests located at the subject activity. The Navy has a proprietary interest only in the land. Proprietary interest is the term applied to those instances wherein the Federal Government has acquired some right or title to an area but has not obtained any measure of the State's authority over the area.

The foregoing response caused some concern to the writer since the first impression conceived was that the Air Station was amenable to a broad area of discretionary and ministerial acts of the local and state authorities in the absence of exclusive, concurrent or even partial jurisdiction. Accordingly, a prompt refresher in constitutional "landmark" cases was indicated so as to be able to render a legal opinion as to the extent and limitations of action of local and State authorities concerning legal matters aboard the station.

Chief Justice Marshall laid down the principle that both the State and Federal Governments are sovereign within their respective spheres and that neither can, without the consent of the other, exercise any power that would restrain or obstruct the other in the free exercise of its own exclusive prerogatives under the Constitution. The sovereignty of neither government is absolute and unlimited, but on those subjects within its jurisdiction upon which it has acted, the Federal law is the supreme law. Among the powers delegated to Congress is the right to make all

2. McCulloch v. Maryland, 4 Wheat. 315, 409, 17 U.S. 315, 409 (1819).

3. Id. at 405. See U.S. Constitution, art. VI, cl. 2.

laws which are necessary and proper for the carrying into effect the powers expressly delegated. The words "necessary and proper" as thus used have been interpreted as including all means which are conducive and adapted to the end to be accomplished and which in the judgment of Congress would most advantageously effect that end. Commenting upon the extent of this incidental power of Congress, which is the foundation of the doctrine of its implied powers, Justice Marshall said, "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”

Among the implied powers of the Federal Government essential to the accomplishment of its enumerated powers is the right to use its land or other property, without restraint or hindrance on the part of the States, in such manner as to best accomplish the purposes for which it was acquired. This power springs from the fact that the Federal government must of necessity be permitted to employ all necessary means to protect its property and to accomplish the powers delegated to it by the Constitution; " it exists independently of the express provision of the Constitution which empowers Congress to make all needful rules and regulations respecting the territory and other property of the United States, and without regard to whether the State has by legislative action agreed that the Federal Government may exercise any part of the State's jurisdiction over lands of the United States situated within the State."

When land is used by the United States as a means of accomplishing some power delegated to it by the Constitution, such use cannot be interfered with or impaired by the State; a State cannot exercise any jurisdiction over such land that would limit the free and adequate use thereof for governmental purposes even though it may have been acquired in the first place without the consent of the State."

Thus, although the laws of the State apply within all Air Station lands, the foregoing constitutional authorities clearly show that the use of the station lands by the Navy for naval purposes cannot be interfered with by the State, nor can the State exercise any jurisdiction limit

4. U.S. Constitution, art. I, sec. 8, cl. 18.

5. Van Brocklin v. Tennessee, 117 U.S. 151 (1886); In re Neagle, 135 U.S. 1 (1890). See Navy Real Estate Law, NAVPERS 10844 (1949), 32, 35.

6. U.S. Constitution, art. IV, sec. 3, cl. 2.

7. Pundt v. Pendleton, 167 Fed. 997, (N.D. Ga. 1909); Fort Leavenworth Railroad Co. v. Lowe, 114 U.S. 525 (1885).

ing the free and adequate use of the lands for naval purposes. With the foregoing yardstick of prerogatives available, meetings were arranged with county and local State officials for an "agreement of understanding" concerning procedures to be observed in handling and disposing of legal matters involving the station and personnel aboard the station. The agreements covered such matters as appropriate JAG Manual procedures incident to service of civil and criminal process, delivery of personnel, the manner in which to obtain official records, the necessity of a signed consent to obtain blood specimens, repossession of personal property, investigation of State law violations committed aboard the station, procedures for referral of death cases, welfare cases and juvenile matters, and other areas of mutual concern.

Although Marine sentries are at all station gates, the modified island security concept is also observed within the Operations area, which is a distance of six miles from the Administration area and is a limited access zone. Therefore, all process is served in the legal office located in the Administration area and, after examination for legal sufficiency, release agreements are executed for personnel aboard the station including the twenty-five squadrons here homeported. This arrangement minimizes interference with military purposes of the station and avoids civilian law enforcement personnel wandering around the Operations area in search of personnel. Since the station does not have at least concurrent jurisdiction, the Federal Bureau of Investigation does not have statutory authority to investigate crimes except in those specific cases which also apply off the station, as provided for by Title 18, U.S. Code, such as theft of Government property, fraud against the Government, etc.

The thought may have occurred to the reader: why hasn't the Government obtained concurrent or exclusive jurisdiction over the station? The following is a short statement of background and of the current jurisdictional status of the station.

Prior to 1940, whenever the United States acquired land for naval or military purposes, the Federal Government automatically obtained whatever jurisdiction the State offered under existing legislation. Since February 1940, jurisdiction must be formally accepted by the Federal Government,s usually by letter from the Secretary of the Navy, by filing a notice of such acceptance with the Governor of the State; and under State law applicable to the Air Sta

8.40 USC § 255 (1958).

tion, a legal description by metes and bounds would have to be filed in the county courthouse. Under the provisions of the State law which obtains at the station, concurrent jurisdiction is not provided for, so it would require an amendment to the pertinent statutes by the State legislature if concurrent jurisdiction were requested and obtained. Although under State law exclusive jurisdiction could be accepted, the remote location of the Air Station (ten miles to the nearest town) with the inordinate expense of furnishing complete Federal law enforcement service would be prohibitive. Also the Navy Department policy is to acquire exclusive jurisdiction over Federal property only when acquisition is essential to the proper performance of military functions, missions and tasks on the property. In this case a proprietary interest was considered sufficient for naval purposes and exclusive jurisdiction was not acquired. Since the local and State authorities provide any required assistance upon request, it is patently clear that a change in status is not required and would probably not be approved under the current theories and concepts relative to the status of Government owned land."

Another unusual province of legal responsibility aboard the Air Station is the Capehart Housing area which consists of 1,300 houses and about 5,000 residents.10 Here again, since State laws apply, any matter which normally requires action by law enforcement or county officials off the station, is handled or investigated by them upon request. During the past year the station has had numerous incidents of the foregoing nature from deaths and automobile accidents to juvenile matters, and because of the excellent liaison, rapport and "agreement of understanding" with local authorities, all incidents have been processed and resolved without difficulty.

Another legal issue which appeared to be of general significance to the Government, and of particular interest to the Air Station, since the station has no jurisdictional status, concerned the "minimum milk price control" State law. This law has resulted in litigation between the State and the Federal Government 11 as to whether the minimum price law should prevail in the sale of milk to the military installations. The milk was used (1) for strictly military consumption, (2) for resale at Federal commis

9. Real Estate Administration, BUDOCKS Publication NAVDOCKS P-73, Chapter 26 (not yet distributed).

10. Capehart Housing is Armed Forces family housing authorized under Title VIII of the National Housing Act as amended (12 USC §§ 1748-1748h-3) authorizing the financing and construction of public quarters in the United States under a Federal Housing Administration insured mortgage program.

11. Paul v. United States, 371 U.S. 245 (1963).

saries, and (3) for consumption or resale at various military clubs and post exchanges. The milk for the first two categories was paid for with appropriated funds under Federal law and regulations providing for procurement of supplies with appropriated funds through competitive bidding.12 The competitive bidding resulted in a price below the minimum of the State law. The Court held that the milk of the first two categories was used by the United States in the exercise of its constitutional power to establish and maintain the Armed Forces and that the State's minimum price law was unenforceable where it conflicted with the lawful Armed Services Procurement Regulation serving the exercise of that constitutional power. In regard to the milk purchased with nonappropriated funds, the Court found that Congress has not enacted pertinent legislation. The Court therefore held that, if the State minimum price law existed at the time the United States acquired the tracts of land, that minimum price law remained enforceable.13 If the State law did not exist when the United States acquired the land, it is now unenforceable provided the United States acquired exclusive jurisdiction but is enforceable if the United States acquired less than exclusive jurisdiction.

In the foregoing discussion, the jurisdictional question has been emphasized primarily for the benefit of those law specialists who may be faced with similar circumstances if assigned independent duty at a military installation in a community unfamiliar with military life and procedures. Besides the aforedescribed liaison with local authorities, the writer has had numerous occasions to accept invitations to speak before business and professional organizations in nearby towns and cities. This has been an excellent method of apprising the surrounding community of naval problems and Navy procedures from indebtedness involvements of naval personnel to the code of conduct of the Armed Forces. In every instance, people from the audience have declared that the speeches supplied information previously unknown to them and for which they were grateful. Such addresses are an excellent means of establishing a better understanding between the naval and civil communities.

The writer does not mean to imply, however, that the introduction of a Naval Air Station into 12. Armed Services Procurement Act (10 USC §§ 2301-2314) and Armed Services Procurement Regulations.

13. See footnote 1 above explaining that, in order to avoid a legal vacuum, civil law of the State in force and effect at the time remains enforceable in areas under exclusive Federal jurisdiction unless inconsistent with Federal law and until replaced by new Federal law.

a community will result in unanimous praise and commendation to the Navy and its personnel. Contrariwise, there have been instances where members of the local juvenile element have evidenced such resentment that a series of unprovoked assaults on Naval Air Station personnel culminated in the death of a sailor from a stab wound. As a result of this as well as prior incidents, the area in which the homicide occurred was placed under a military curfew until positive local action was taken to insure adequate protection of naval personnel. Of course the civilian hoodlums who were responsible for the murder were indicted and the community leaders strongly endorsed improvement of conditions in order to stop the monetary embargo resulting from continuation of the curfew. Needless to say, conditions for military personnel did improve and the curfew was lifted.

In addition to the question of jurisdiction, the writer also found other problem areas incident to establishing a legal office. A basic responsibility was to insure that the command military law and discipline problems were properly disposed of by courts-martial or administrative field boards, as appropriate, but in addition he was concerned with:

(1) The procurement of law books, codes and law digests to properly equip an adequate law library. This problem required advocacy and justification to the Comptroller and Commanding Officer in order to obtain the necessary "working tools" of the lawyer. Since the Air Station is two hundred miles from the nearest law specialist in the District, the need for a law library was clearly indicated.

(2) The instituting of an effective legal assistance counselling program. Since the station population of military personnel and dependents exceeds 10,000, and the station Legal Officer is the only law specialist aboard, it is imperative that his services are continuously available to insure immediate legal assistance when needed. This assistance is assured by availability at the legal office during working hours and at quarters afterwards. It has become routine to receive quarters calls at all hours of the night but, as in civilian practice, the later the call the more the need.

Since it is a new Station, it devolved upon the legal officer to properly train investigators in the handling of military violations aboard the station from obscene telephone call complaints, "peeping toms", SecNav 1620.1 cases 14 to the routine larceny; the drafting of station instructions, processing of line of duty/misconduct investigations for both Naval Air Station personnel and referrals from other commands who have personnel injured in the contiguous area;

14. SecNav Instruction 1620.1, Procedure for the disposition of cases of homosexuality involving naval personnel.

investigation of claims for and against the government including personal injuries, deaths, auto and airplane accidents and sonic boom complaints, the resolving of military law questions and other legal queries which are broached every day by the many commands aboard the station; and insuring close liaison with and support of the local bar which is an absolute necessity in referring, with dispatch, those legal matters which require civil litigation.

Notwithstanding the foregoing digression from the primary discussion of jurisdiction, it is evident that the writer's initial concern, because the Station lacked a jurisdictional status, was unfounded as reflected by the passage of time and events. As previously indicated, the current mutual spirit of cooperation and understanding between the civilian authorities and the station has been instrumental in resolving all legal problems which have been beyond the scope of the Uniform Code of Military Justice. In order to insure the continuation of this understanding, the Commanding Officer and the Legal Officer meet regularly with local officials and leading citizens to maintain this mutual respect for respective areas of responsibility. The following chart is submitted as a brief comparison of the salient points of procedure under proprietary interest only, and exclusive jurisdiction and, as hereinbefore indicated, the absence of exclusive jurisdiction over a military installation should not present an unreconcilable situation with local authorities.

PROPRIETARY INTEREST ONLY 1. All State laws apply except for those which interfere with military mission of station. Commanding Officer may implement any procedure needed for military purposes and State cannot interfere.

EXCLUSIVE JURISDICTION 1. State laws do not apply unless there is a reservation in the grant of exclusive jurisdiction. Quite often States reserve the right to serve civil and criminal proccess, the right of taxation, and the right of suffrage. (Strictly speaking, the Federal jurisdiction is not "exclusive" if the State reservations encompass more than the right to serve process.)

a. Some State laws in civil matters apply as federalized law to avoid legal vacuum. b. Other specific State laws may apply as State law by virtue of retrocession.

2. Station may request assistance of local and State law enforcement personnel in any matter where needed. FBI investigates only theft of Government property and certain other specific US Code statutory offenses as is committed off the station. County Welfare Agency, Juvenile and Probation Department, Coroner, Sheriff, District Attorney and other local and State authorities assist when required.

3. State has authority to tax persons and private property except for Soldiers' and Sailors' Civil Relief Act immunity (50 USC § 574 (1958)) if applicable. (NOT property of U.S. Government.)

4. Delivery of personnel to State or local civil authorities: see JAG Manual § 1302.

5. Obtaining Official Records of Navy Department and Personnel: see JAG Manual, Ch. XIII, Part III.

Eavesdropping

4. Delivery of personnel to State or local civil authorities: see JAG Manual § 1302.

5. Obtaining Official Records of Navy Department and Personnel: see JAG Manual, Ch. XIII, Part III.

(Continued from page 234)

past misdoings, it is believed that they would be inadmissible as mere evidence of a crime.

CONCLUSION

In a common law system such as ours, where the framework provided by our constitutional and statutory law must be filled in graduallyblock by block-by the decisions of our courts, it is sometimes necessary to wait for many years to find definitive answers to specific questions such as those posed in this article. The few landmark cases in the area of electronic eavesdropping have spanned a period of some twenty years. It is not to be expected that the law in this area will remain static any more than will

the electronic techniques involved. Trial counsels, Presidents of special courts-martial, Law Officers and reviewing authorities will necessarily have to remain alert to the evidentiary problems presented by electronic eavesdropping. Although the peculiarly military problem posed

by the commanding officer's search must wait a definitive decision by the Court of Military Appeals, the Federal decisions provide a solid framework on which trial personnel can make their decisions at trial and on which convening and supervisory authorities can rely in review.

advanced by Wigmore, may be said to include computer storage devices.

Apart from the general rule that the statement must be in writing, there is no limitation as to the mode of written expression. Any mark or sign that is interpretable as having a definite meaning will suffice."

There is a possibility that the 1951 amendment to the Federal Business Record Law might apply to punched cards and magnetic tapes, but there has been no adjudication of the issue. However, one legal writer suggests that since the descriptions mentioned in the amendment resemble photographic reproductions, IBM cards and tapes might be excluded."

It is doubted whether the courts will have any difficulty in successfully placing IBM cards and tapes within the meaning of the word writing. The mere form of the writing should not be such as to, in and of itself, negate the admission of IBM card information in evidence. However, since computer records in their stored form are unintelligible, a print-out will undoubtedly be offered in their stead. In Sunset Motor Lines v. Lu-Tex Packing Co.," the only case found involving an IBM card offered into evidence, the court rejected the card for lack of essential information and necessary official certification. One legal writer questions whether a court will accept a print-out if the Sunset case is followed." However, it is felt that the above author's conclusion is not sound because the Sunset case does not purport to exclude a properly certified print-out.

This

A print-out offered into evidence will undoubtedly be subject to attack under the Best Evidence Rule. Rule generally demands that originals be introduced into evidence instead of copies thereof. Essentially, a computer system is employed to enable the storage of vast amounts of information and to maintain ready accessibility of records. A computer system will therefore permit destruction of all paper originals once they are incorporated into the system.

It can be argued that computer records (magnetic tape, punched cards, etc.) are analogous to undeveloped micro-film or set printing type, in that each becomes legible words and numbers automatically through a machine, without human intercession. "Following out that analogy, all print-outs of the identical machine

7. 5 Wigmore, Evidence, § 1531 (1940, Supp. 1959).

8. 28 USCA § 1732(b).

9. Freed, "Computer Technology," supra, note 3, at 124.

10. 256 F. 2d 495 (5th Cir., 1958).

11. Douglas, "Automatic Data Processing and the Government Lawyer," 22 FBJ 137, 140 (Spring, 1962).

records would be duplicate originals, regardless of when they were made." 12

The above reasoning would be applicable to business entries. However, there appears to be no problem when the intended evidence is an official statement, and it is a well established rule that the contents of a public record may be proved by a duly authenticated transcript or copy.13

The lawful custodian of an official record has, by implication of his office, and without express order, an authority to certify copies." Furthermore, authentication may be proved in court by the process of Judicial Notice and the doctrine of authentication. The latter doctrine is satisfied by showing (1) the authority of the certifying signature, (2) the genuineness of the signature, and (3) that the signator is the custodian of the official document. It therefore appears, contrary to the present practice employed by most courts-martial in authenticating service record entries, that a witness need not be called to the stand to authenticate an official record.

No insurmountable problem is foreseeable concerning computer print-outs offered in evidence so long as enlightened courts render logical decisions. The problem has not yet arisen in the military, but, as its appearance will be forthcoming, an awareness that computer tapes, cards, and print-outs all may be included within the presently recognized rules of evidence will eliminate confusion which might otherwise be engendered by a court's decision formulating some new "rules of law" thereby opening the door to compounded confusion.

12. Freed, "Computer Technology," supra, note 3, at 125. See generally, Legal and Evidentiary Problems Arising out of the Use of Computers and Electronic Data Processing Equipment-A Panel Discussion," 17 Bus. Law 94 (Nov. 1961).

13. 23 C.J.S., Criminal Law § 845(b).

14. 5 Wigmore, Evidence, § 1677.

15. Freed, "A Lawyer's Guide Through the Computer Maze," 6 The Practical Lawyer, 15, 27 (Nov. 1960).

U.S. GOVERNMENT PRINTING OFFICE:1964