INTERNATIONAL LAW (Continued from page 64) in the political structure of the United States. The sources of obligations of a U.S. military officer to observe international law in the national community are basically the Constitution of the United States, laws passed by Congress and departmental regulations. By the solemn oath we take as officers we undertake to support and defend the Constitution of the United States. Looking to the Constitution as a source of obligation, we find congressional authority granted by the Constitution concerning the establishment and government of armies and a navy, as well as certain matters of international law. This authority includes, inter alia, the power: 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 committed on the high seas and offenses against the law of nations; and e. To declare war, grant Letters of Marque and Reprisal, and make rules concerning captures on land and water.23 The Constitution further provides that 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: 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 c. Section 6011 of Title 10 which provides that: 23. U.S. Const., art. I, § 8. 24. U.S. Const., art. II, § 2. 25. U.S. Const., art. VI, par. 2. 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." 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 international law and the rules of humane warfare. b. Use of force against a friendly state. This section renders illegal any use of force by U.S. Navy personnel against a friendly foreign state, re serving the right of self-preservation. 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. CONCLUSION 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. RIGHT TO COUNSEL (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 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. PARTY RIGHTS (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 opportunity to cross-examine and should there be no further evidence of record supporting the information supplied by the witness, the Judge Advocate General will give the party the benefit of the doubt. However, valid evidence of record which may be harmful to the party will not be precluded solely because the party had not been initially afforded his rights. All evidence is fairly weighed in light of the entire report. When there is an initial deprivation of party rights and it is impossible to afford the party all his rights, the Judge Advocate General will attempt to evaluate the report so as to place the party in the same position he would have been in had he initially been accorded his rights. Although a party may be accorded his rights as set forth in section 0304 of the JAG Manual and although the party has been properly warned under Article 31, Uniform Code of Military Justice, no signed statement submitted by him relating to injuries incurred by him will be considered unless subject report contains an acknowledgement in accordance with the requirements of section 0306, JAG Manual. Should the evidence submitted by the party require further investigation and should circumstances preclude such an investigation, the doubt engendered thereby will be resolved in the party's favor. SENIORITY OF INVESTIGATING OFFICERS TO PARTIES As a final caveat it should be emphasized that no member of a fact finding body should be junior to a party. If a party designated during the proceedings is senior to a member, the convening authority should be notified so he may make an appropriate revision in membership if practicable." The rules of seniority do not apply to counsel except when the junior member of a board or investigation is also acting as counsel. In the event that it is not practical to abide by the rules of seniority, the convening authority should offer an explanation in his action." When a report is reviewed and it is evident that a party is senior to one or more of the investigating officers, and no explanation is offered, the report will be returned to the convening authority for appropriate comment. It is improper for a junior officer to pass judgment on his senior, and every effort should be made to insure that all investigating officers are senior to all the parties. 28. JAG Manual, sec. 0208c. 29. Ibid. CONCLUSION JAG Manual investigations are an established Navy-Marine Corps fact of life. As the probabilities indicate that the line officer will be called upon to serve in the capacity of investigating officer early in his career, he should familiarize himself with the overall broad JAG Manual requirements. Far too many investigations are returned for additional proceedings either because the original investigation was lacking in completeness or because a party was not properly accorded his JAG Manual rights. In those instances where additional action is required, the cost in money, man hours and inconvenience to all concerned far exceeds what it would have been had the investigation been initially acceptable. Chapter III of the Manual of the Judge Advocate General relating to party rights was enacted to be utilized. Circumvention or avoidance of its provisions whether intentional or cidental will often result in considerable waste which could have been avoided had more attention been devoted to the basic report. ac One of the basic foundations of our form of government is the assurance that no person will be deprived of life, liberty or property without due process of law. Due process of law assures a person the right to receive a fair hearing when he stands to lose personal or property rights. The party rights requirements contained in the Manual of the Judge Advocate General extend this right to administrative naval service investigations; for an adverse recommendation contained in such an investigation may result in individual lost time, loss of pay, loss of disability benefits, or the imposition of disciplinary action. In addition, denial of party rights regardless of intent can easily lead to unwarranted criticism of the military's treatment of its personnel and offers fodder to those critics who are ever striving to stir up issues which tend to malign the integrity of the military establishment. CHANGE OF GUILTY PLEA (Continued from page 72) in the accused to withdraw his plea, that the burden was on the accused to show a basis for withdrawal and that the granting or denying of such a motion was within the sound discretion of the trial court. Under the Uniform Code of Military Justice an application in a military court to withdraw a previously accepted guilty plea is treated much the same as under the Federal law illustrated and defined in the foreging Friedman case. The decisions of our Boards of Review and the Court of Military Appeals have developed our "change of plea" law which is basically set out in paragraph 70b of the Manual and Article 45a of the Code, both of which have been previously discussed. The Boards of Review of the different services for some time differed in their concept of the "right" to change a guilty plea. Two Army decisions, 18 construing Article 45, UCMJ, and paragraph 70b of the Manual, declared that the accused possessed an absolute right to change his guilty plea at any time prior to sentence. An Air Force decision," reasoned that the "should" in paragraph 70b of the Manual (emphasized above), did not give the accused an unqualified right and that a change of plea, during trial, was a matter within the discretion of the court. The Air Force board went on to declare that "if pleas could be withdrawn without reason there would be no stability to trial after a plea of guilty." 20 A recent Court of Military Appeals decision 21 has, to a substantial degree, adopted the latter interpretation so as to deny the accused the absolute right to change his guilty plea after announcement of findings and before the imposition of sentence-without reason. In other words, a request for change now falls within the sound discretion of the law officer (or president, of a special court-martial). He must decide, subject to review for abuse of his discretion, whether there is good reason for the requested change. While a change is not a "right" afforded to an accused, a request for change should, nevertheless, be liberally viewed and, generally, given favorable consideration. As in most matters legal in nature, there are usually exceptions to any rule or proposition stated. With regard to the "right" to change a guilty plea, as above discussed, there are at least two exceptions worthy of mention. If the accused has been otherwise advised by the court as to his right to change his guilty plea, that advice may effectively modify the law which would otherwise be applicable to the case. example, if the law officer advises the accused that he may withdraw his plea anytime prior to the announcement of sentence (a gratuitous instruction not infrequently given) the accused can rely on that "right" and can, without reason, change his plea within the latitude of the advice For 18. Yelverton, supra note 14; CM 401044, Blackmon, 27 CMR 783 (1959). 19. ACM S-11379, Hodges, 20 CMR 754 (1955). 20. Id. at 760. 21. United States v. Politano, 14 USCMA 518, 34 CMR 298 (1964). 23 given.22 Also there is the problem of what to do at a rehearing on the sentence only. The law is not fully developed in this area but it would appear, at least, that a denial of a request for a change of plea, at this time and absent any showing of a patent inconsistency or a probability of some defense, is not improper or an abuse of discretion. Although the Court did not so rule, it did tacitly indicate its approval of the proposition that a court, at a directed rehearing on the sentence only, may be powerless to allow the accused to change his plea under any circumstances. In the event of a clear showing, at the sentence rehearing, of circumstances indicating an entitlement of some relief, the Court suggested that the court could: halt the proceedings at that point, advise the convening authority in the premises, and that the latter should then return the case with the record of the rehearing completed to the point of adjournment to the Board of Review for its further consideration." It is suggested that the reasonable inference from the foregoing is simply that at a rehearing on sentence only the court should never effect a change of plea. It should either deny the request or, under appropriate circumstances, terminate the proceedings and refer the matter back to the convening authority. Summing up, then, does an accused have an absolute right to refuse or to obtain a change of his guilty plea? The clear answer is "No." The court, in its discretion, can change or refuse a request to change the guilty plea at any time, except perhaps in the situation of a rehearing mandate on sentence only, or where a particular piece of gratuitous trial advice has been given by the court to the accused so as to afford him a "right" which he may be entitled to rely on and use. As aptly stated by Chief Judge Quinn, "a criminal trial is not a game." 25 While the accused is always entitled to a fair trial he should not be permitted to play fast and loose with a court-martial. While not endowed with an absolute right to refuse or to obtain a change of his guilty plea, a sound and liberal exercise of discretion by law officers and presidents of special courts-martial should lead to the end that the interests of fairness and justice will be served in all instances. 22. Yelverton, supra note 14. 23. United States v. Kepperling, supra note 15; Yelverton, supra note 14. 24. United States v. Kepperling, supra note 15 at 285, 29 CMR at 101; accord, Collier, supra note 15. 25. United States v. Politano, supra note 21 at 523, [citing United States v. Wolfe, 8 USCMA 247, 24 CMR 57 (1957)]. U.S. GOVERNMENT PRINTING OFFICE: 1965 |