from our traditional methods of law enforcement and would go a long way toward placing "the liberty of every man in the hands of every petty officer." By sanctioning the Ohio statutes involved here the majority disregards "this nation's historic distrust of secret proceedings" and decides contrary to the general principle laid down by this Court in one of its landmark decisions that an accused ". . . requires the guiding hand of counsel at every step in the proceedings against him. . . .”

It may be that the type of interrogation which the Fire Marshal and his deputies are authorized to conduct would not technically fit into the traditional category of formal criminal proceedings, but the substantive effect of such interrogation on an eventual criminal prosecution of the person questioned can be so great that he should not be compelled to give testimony when he is deprived of the advice of his counsel. It is quite possible that the conviction of a person charged with arson or a similar crime may be attributable largely to his interrogation by the Fire Marshal. The right to use counsel at the formal trial is a very hollow thing when, for all practical purposes, the conviction is already assured by pretrial examination.

Finally, it is argued that the Fire Marshal and his deputies should have the right to exclude counsel and such other persons as they choose so that their "investigatory proceedings" will not be "unduly encumbered." From all that appears the primary manner in which the presence of counsel would "encumber" the interrogation would be by protecting the legitimate rights of the witness. It is undeniable that law-enforcement officers could rack up more convictions if they were not "hampered" by the defendant's counsel or the presence of others who might report to the public the manner in which people were being convicted. But the procedural safe-guards deemed essential for due process have been imposed deliberately with full knowledge that they will occasionally impede the conviction of persons suspected of crime.12 It is basically Justice Black's position in the Groban case which the Supreme Court has reflected in its decision in the case of Escobedo. Thus, the pendulum has reached a new position.

Turning now to the corresponding area of military jurisprudence, it should be noted that as long ago as 1957, the United States Court of Military Appeals recognized the position which the Supreme Court has now assumed in this constitutional area of right to counsel. In the case of United States v. Gunnels,13 the accused had been informed of charges which were pending against him and had been advised of his rights under Article 31, Uniform Code of Military Justice, 10 USC § 831. At that point the accused told the investigating agent that he desired to make no statement until he had an op

12. In re Groban, supra note 1, at 337. 13. 8 USCMA 130, 23 CMR 354 (1957).

portunity to consult with counsel. The accused was referred to the office of the Staff Judge Advocate where he was informed that until the specific charges had been drafted, no officer was to give him legal advice.

In holding that such a procedure deprived the accused of his constitutional right to counsel, the United States Court of Military Appeals held:

Under the United States Constitution, in "all criminal prosecutions" the accused is entitled "to have the Assistance of Counsel for his defense." United States Constitution, Amendment VI. The right is not limited to the trial itself, but includes the pretrial proceedings during which counsel investigates the facts and prepares the defense."

The Court then noted that while an accused in the military is entitled to have counsel assigned to him only in an actual criminal proceeding and not in an investigation, this does not mean that he is precluded from obtaining necessary legal advice in those situations wherein he is not entitled to assigned counsel. Accordingly, the Court held:

We, therefore, strongly condemn the practice, which appears to be common in the military, of telling a suspect that he cannot consult with counsel in connection with an interrogation by enforcement agents.

It seems to us to be a relatively simple matter to advise an uninformed and unknowing accused that, while he has no right to appointed military counsel, he does have a right to obtain legal advice and a right to have his counsel present with him during an interrogation by a law enforcement agent.

Turning to the effect of the errors, we hold that they constitute a denial of the accused's right to counsel. Of course, the Staff Judge Advocate was not bound to assign military counsel to the accused. However, he was obligated to give him correct advice. Had he given the accused such advice the accused would have known that he had a right to have his counsel present during his interrogation.15

This principle was again recognized by the Court of Military Appeals in the recent case of United States v. Brown.16 In this case the accused requested legal advice during an interrogation. He was referred to a non-lawyer officer who had been detailed as Battalion Legal Officer. While the accused was not affirmatively misadvised of his right to consult an attorney, he was misled into thinking that he was in fact consulting with a lawyer. The advice which he received from this officer allegedly in(Continued on page 82)

14. Id. at 133, 23 CMR at 357.

15. Id. at 134, 135, 23 CMR at 358, 359. 16. 13 USCMA 14, 32 CMR 14 (1962).

E

XPERIENCE AS THE sole legal officer at a shore command has prompted this article. Its purpose is to suggest how the only legal officer, lawyer or non-lawyer, aboard ships and the relatively small shore stations may best be utilized in relation to certain problem areas.

Initially, it is recognized and should be, that the utilization of a legal officer is a prerogative of the commanding officer. This discussion is no attempt to alter that fact; it is to offer suggestions which may be of some assistance in exercising that authority.

Normally, the legal officer is a special assistant to the commanding officer. (In the small command, there is usually no legal department.) The legal officer's primary duty is, in part, to advise the commanding officer on matters within the legal officer's expertise, consistent, of course, with whatever applicable standards limit the scope of his participation in any given situation. It is in this general context the legal officer's activities will be discussed.

The approach of this article is to analyze two specific problem areas involving the legal officer and to suggest appropriate solutions to each. The specific areas are Courts-Martial Review and Personnel Legal Problems.

COURTS-MARTIAL REVIEW

The problem in this area may be raised by posing the question: to what extent may the legal officer participate in a case involving an offense under the Uniform Code of Military Justice without being precluded from reviewing a resulting summary or special court-martial? The question assumes, of course, the legal officer will perform some sort of reviewing function. And as advisor to the commanding officer, the legal officer is usually charged with the responsibility of reviewing summary and special courtsmartial and aiding the commanding officerconvening authority in accomplishing his re

Lieutenant Swoboda is currently assigned to the Appellate Defense Division, Office of the Judge Advocate General. A graduate of Harvard University, A.B. 1957, LL.B. 1960, he is member of the Massachusetts Bar. He was commissioned a line officer, later became a law specialist, and has had prior duty as legal officer at U.S. Naval Station, Annapolis, and U.S. Naval Air Facility, Sigonella, Sicily.

view a statutory requirement.1

The convening authority's review, judicial in nature, should be comprehensive and impartial.2 The legal officer's review, therefore, if it is to be of value to the convening authority, should meet the same standards. It follows, then, the legal officer, like the convening authority, should not participate in the same case in any manner which would render him unable to accomplish such review.3

Nonetheless, it seems to be the practice in many small commands for the legal officer to become involved in cases to an extent inconsistent with a position in which he would be able to give a proper review. In some commands, for example, the legal officer may be called upon to conduct a preliminary inquiry into a suspected offense, or he may draft charges and specifications preparatory to Captain's Mast or a possible court-martial.

And it is not illogical for the legal officer to perform such duties. The legal officer, even if not a lawyer, is usually a graduate of Naval Justice School or has other training which suits him for dealing with all matters concerning the Uniform Code of Military Justice, such as investigating offenses and preparing charges and specifications.

But such duties are inconsistent with the impartiality necessary for an objective, comprehensive review of a court-martial arising out of the same incident. (It must be noted that if no court-martial resulted, performance of such duties by the legal officer would not be inconsistent; but as explained below, at the time an offense is suspected there is no way of foreseeing the outcome.) The person conducting a preliminary inquiry into a suspected offense has the responsibility of determining whether or not an offense has probably been committed, ascer

1. UCMJ art. 60, 10 U.S.C. 860.

2. See MCM 1951, Chapter XVII, particularly par. 86b (1). 3. This conclusion also applies to review of certain claims against the U.S. Government, as for example, Personnel Claims which may be reviewed by the commanding officer or the legal officer, JAG Manual, sec. 2123a. And, to some extent, although the standards of impartiality are perhaps less formal, the conclusion also applies to review of administrative investigations, particularly those conducted in accordance with the JAG Manual. (See especially "line of duty-misconduct" determinations, JAG Manual Chapter VIII, which may on certain occasions result in disciplinary action or court-martial.)

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 officer, 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,s

4. The important distinction here is between the original investigation 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 subsequent.

5. The question would most likely arise if at all, in a special courtmartial 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).

The

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. 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

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) inte 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.

This last conclusion answers the question posed at the beginning of this section. The legal officer should become involved in proceedings, which may result in courts-martial, only to the same extent as the commanding officer. Once this concept is applied, it is urged, the legal officer is in a position to be of best assistance to the commanding officer.

PERSONNEL LEGAL PROBLEMS

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 advising the commanding officer on legal matters, the lawyer legal officer is usually charged with acting as Legal Assistance Officer which involves providing advice on personal legal problems to members of the command.14 The non-lawyer legal officer, unqualified to give legal advice because he is not an attorney, may, nonetheless, and usually does, have the responsibility of directing members of the command to a Legal Assistance Officer (attorney).

If the Legal Assistance Officer, acting in that capacity, consults a member of the command concerning the member's personal legal problem, he establishes with the member an "attorney-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 interest.16

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. 16. Ibid., Canon 6.

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.10 In this light, the legal officer who is directing a member to a Legal Assistance Officer should make clear to the member that the attorney-client relationship does not exist, so the member is not misled into believing that whatever 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 situations where the client seeks legal advice from one who appears to be competent to give such advice; but, while there are some decisions which support this position, there is absolutely no assurance, absent litigation on the matter, that it would protect the client who talked over his problem with a non-attorney military legal officer.

20. SECNAVINST 5801.1B, supra.

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.

SEA LIFT VERSUS AIR LIFT

(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.