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Evidence obtained by foreign police: admissibility and the role of foreign law.

     A. "Participation" in Foreign Interrogations
     B. "Participation" in Foreign Searches
     A. Foreign Interrogations and Advisement of Rights
     B. Advisement of Rights and Voluntariness in Japan
     A. Statements and Foreign Law
     B. MRE 311 (c) and the Future of Foreign Searches


For military service members, being stationed abroad provides exciting opportunities for extensive experience with and exposure to foreign cultures and people. However, these opportunities do not come without some risk: U.S. military personnel are not only subject to the Uniform Code of Military Justice (UCMJ) wherever they go, they must also obey the laws of the host nation where they are stationed, or any other country where they might travel for personal reasons. (1) Service members must comply with local law and are subject to arrest by foreign law enforcement. Ignorance of a host country's law provides no relief, no more so than in the U.S.

The criminal offenses allegedly committed by service members outside installations located in other countries frequently attract high public interest and involvement by foreign law enforcement. (2) Foreign police investigations of U.S. military service members often feature timely coordination with U.S. military law enforcement authorities. However, in some cases, foreign police conduct a wholly independent investigation. In both situations, they gather evidence using procedures similar to their U.S. counterparts, i.e., obtaining statements from suspects and witnesses, and performing searches and seizures of suspected physical and forensic evidence. Determinations of whether such evidence obtained by foreign law enforcement may be admitted in a military court-martial or other military justice proceeding require application of standards which may differ substantially from the rules applicable to evidence gathered by military or U.S. civilian investigators.

This article analyzes the admissibility of evidence obtained by foreign law enforcement in U.S. military courts-martial and examines the applicability of foreign law factors in this analysis. It begins with an overview of the level of participation by U.S. law enforcement that courts have ruled sufficient to afford an accused constitutional and statutory protections under U.S. law. Second, this article discusses the admissibility at courts-martial of statements by an accused to foreign law enforcement. This section focuses particularly on admissibility of such statements obtained by foreign law enforcement in Japan--the situs for much of the relevant case law on this subject due to the United States' long history of military personnel stationed there. (3) Third, this article addresses admissibility at courts-martial of evidence obtained during searches by foreign law enforcement. Lastly, this article suggests reframing the role of foreign law in military courts' analysis of foreign-obtained evidence, by focusing on foreign law views of the voluntariness and reasonableness of such evidence and how it was obtained.


Assessing admissibility of foreign-obtained evidence at a court-martial focuses first on whether U.S. personnel participated in the investigation, and if so, whether that participation complied with the UCMJ and the U.S. Constitution, both of which apply to U.S. service members and U.S. military investigators regardless of location. If U.S. military investigators are intimately involved or actively participate in the foreign investigation, they must advise a service member, who is suspected based on probable cause of having committed a criminal offense, of his rights pursuant to Article 31, UCMJ. In addition, any search must also comply with the standards set forth in the UCMJ and U.S. constitutional law interpreting the Fourth Amendment. (4) However, where U.S. investigators had no involvement at all, evidence obtained by foreign law enforcement will generally be admissible at court-martial. This will hold true regardless of whether such evidence derived from a foreign interrogation or search that would otherwise violate U.S. law (including the UCMJ). Resolution of these questions depends on the definition and application of the concept of "participation."

A. "Participation" in Foreign Interrogations

The Military Rules of Evidence (MRE) provide that a rights advisement under the UCMJ and the U.S. Constitution are not "required during an interrogation conducted abroad by officials of a foreign government or their agents unless such interrogation is conducted, instigated, or participated in by military personnel or their agents" or by certain federal or state agents. (5) The rule is simple: no direct involvement or participation, no rights advisement necessary. Conducting and instigating are fairly clear words of action, but the vagueness of "participation" provides greater opportunity for debate and litigation. The question then becomes: what is "participation?"

Shortly following the implementation of the UMCJ in 1951, the courts held that mere presence of U.S. officials did not, by itself, constitute "participation" (6) triggering Article 31 requirements. (7) The 1980 amendment to MRE 305(h)(2) explicitly incorporated this interpretation. (8) However, rather than positively clarify what does amount to "participation," MRE 305 now provides three negative examples of what does not, by themself, constitute "participation" in a foreign interrogation: (1) mere presence by American authorities, (2) interpretation performed by American authorities, and (3) attempts to mitigate damage to property or person. (9)

Subsequent judicial decisions have continued to refine the definition of "participation" in foreign interrogations. The military courts have held the following do not constitute participation for purposes of MRE 305: escorting foreign police onto a U.S. military base and to the accused, coupled with the presence of U.S. military personnel during questioning of the accused by the foreign police; (10) facilitating communication of information between foreign law enforcement; (11) and providing a room for interrogation of the accused by foreign agents. (12) Any involvement by U.S. authorities, though, triggers close examination, focusing on "whether the foreign police agent is a mere instrumentality of American authorities and, therefore, the interrogation is, in essence, an American interrogation." (13)

Knowledge by military authorities that a suspect service member has invoked his or her rights under foreign law also does not amount to "participation." Remaining silent and requesting an attorney, when foreign law affords such rights, may forestall further interrogation by foreign police; however, exercising those rights does not preclude military officials from later questioning the service member. (14) In United States v. Vidal, German police apprehended a soldier suspected of kidnapping. (15) When advised of his right to remain silent and to request counsel, the soldier asserted both rights. (16) A special agent with the Criminal Investigation Command later arrived and advised the soldier of his right to remain silent under the UCMJ. The soldier waived his right and provided an inculpatory statement. Even though the agent was unaware of the soldier's request for counsel made to the German police, the court stated that it did not matter. (17) Had the agent known of the request, he still would not have been constrained by the service member's earlier invocation of rights to foreign police. (18) As long as U.S. military officials do nothing to actively participate in the investigation, nothing will be imputed to them. (19)

B. "Participation" in Foreign Searches

The Military Rules of Evidence address participation in foreign searches in a similar manner as participation in foreign interrogations. Pursuant to MRE 311(c), any search or seizure that is "conducted, instigated, or participated in" by military personnel or their agents, whether initiated or led by foreign agents or not, must comply with the U.S. Constitution and federal law, including the UCMJ and the Military Rules of Evidence, in order for evidence derived therefrom to be admissible at court-martial. (20) MRE 311(c)(3) mirrors the same three examples of non-participation specified in MRE 305(h)(2)--presence, interpretation, and attempts to mitigate damage or harm. (21) Foreign interrogations without any participation by American authorities are exempt from U.S. constitutional or statutory requirements. (22)

Although the Military Rule of Evidence now provides that presence does not equal participation in searches, this was not always the case. Military courts' decisions have varied over the years on the question of whether mere presence by U.S. authorities at foreign searches triggers constitutional protections. In 1954, the Court of Military Appeals (23) held that mere presence by military investigators during a search by foreign agents was not enough to invoke constitutional safeguards. (24) Then in 1976, the court reversed its position, stating that "whenever American officials are present at the scene of a foreign search ... the search must satisfy the Fourth Amendment." (25) Three years later, the court revisited the issue and swung the pendulum back to requiring something more than mere presence before constitutional protections attach to foreign searches. (26) This is where the law currently stands.


Popular culture, not least including television crime shows, has largely made common knowledge those rights which the Supreme Court announced in Miranda v. Arizona, (27) i.e., the rights of a criminal suspect under apprehension by law enforcement to be informed of certain constitutional and statutory rights prior to custodial interrogation. (28) Article 31 of the UCMJ provides even greater protections to accused service members than Miranda requires. Specifically, it affirmatively requires rights advisement of military members suspected of a criminal offense, at the moment of apprehension or any earlier point when suspicion is based upon probable cause--and not merely prior to custodial interrogation. (29) In general, no person subject to the UCMJ may compel another person to incriminate himself. (30) Article 31 also requires military authorities to inform the accused service member--before any questioning--of the nature of the suspected offense, that he does not have to make any statement, and that any statement made by him may be used as evidence against him in a court-martial. (31)

As an evidentiary matter, the remedy for noncompliance with Article 31, UCMJ, in the military is the same as for violation of the Fourth Amendment and the rights advisement requirement of Miranda--a judicial exclusionary rule that bars admission of evidence produced or derived from the event. (32) Foreign law enforcement authorities, however, are not bound by the rigid constraints imposed by Article 31 and Miranda.

Just as military personnel must obey state and local laws outside (and, sometimes, on) U.S. bases, and anywhere else they might travel within the United States, foreign laws apply to members stationed in host nations, enforced by those nations' authorities. (33) Upon apprehension or questioning by civilian state, county, or city police officers or federal law enforcement agents in the United States, U.S. residents (including service members) normally expect those familiar Miranda warnings. The analogous experience in foreign countries differs widely. Foreign criminal laws regarding interrogating suspects vary widely within each country which hosts U.S. military personnel. (34) In Japan, for example, a suspect's invocation of his or her right to remain silent under Japanese law only applies to the preceding question, thus allowing the Japanese National Police to continue subsequent questioning. (35) Foreign law enforcement interrogation tactics also vary in important ways. Japanese police will commonly question a suspect numerous times over the course of several days, and in some cases, several weeks or months. (36) By contrast, many countries, like the United States, afford far broader protections to criminal suspects, namely, the right to remain silent and the right to legal counsel. (37) What happens, then, when foreign law enforcement interrogation of a military member does not comply with U.S. constitutional protections, or even directly contravenes the rights advisement requirements under Article 31 of the UCMJ?

A. Foreign Interrogations and Advisement of Rights

In several decisions, the U.S. Court of Appeals for the Armed Forces (38) has addressed the interplay between rights advisements and statements procured by foreign law enforcement. The court has consistently held that foreign law enforcement authorities acting alone are not required to advise an accused U.S. service member of his Article 31 rights (or its functional equivalent) as a condition of admissibility of evidence gathered by those foreign authorities at the accused's subsequent court-martial. (39) An accused therefore cannot seek to suppress admission of his own statements during a foreign interrogation based on lack of a rights advisement. This rule mirrors U.S. federal courts' jurisprudence regarding the admissibility of statements by U.S. civilians interrogated by foreign police agents. (40)

Apart from the issue of rights advisement, an accused's statement must also have been voluntary to permit its admission at a court-martial. (41) Courts must analyze whether a foreign-procured statement was voluntary. (42) The Military Rules of Evidence provide that statements obtained "in violation of the self-incrimination privilege or due process clause of the Fifth Amendment to the Constitution of the United States, Article 31, or through the use of coercion, unlawful influence, or unlawful inducement" are involuntary and therefore inadmissible. (43) Because foreign interrogators are not required to provide a rights advisement akin to Miranda or Article 31, military courts need only assess whether the statement involved "coercion, unlawful influence, or unlawful inducement." (44)

A voluntary confession must be "the product of an essentially free and unconstrained choice by its maker." (45) Courts look to "the totality of all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation" in determining a statement's voluntariness. (46) In particular, courts consider the accused's age, education, intelligence, notification of constitutional rights, as well as the length and nature of questioning or detention. (47)

The same standard of voluntariness applies equally to statements obtained by U.S. law enforcement or foreign law enforcement acting alone. (48) Whether the statement meets any voluntariness standard under foreign law is irrelevant. (49) Foreign-procured statements are bound only by the latter provisions of Article 31 (d) that prohibits admission of coerced and improperly influenced or induced statements, and not by the sovereign law of the law enforcement agents who obtained the statements. (50) It does not matter if the statement would have been inadmissible in that foreign court, in application of that country's own criminal law. (51) The Air Force Court of Military Review (52) observed that a mandatory examination of voluntariness under foreign law might result in applying "a particular foreign standard [that is] repugnant to the principles of military justice." (53)

B. Advisement of Rights and Voluntariness in Japan

Throughout the long history of U.S. military personnel stationed in Japan, Japanese law enforcement investigators have investigated and interrogated numerous service members. Although the Government of Japan has primary jurisdiction over certain offenses allegedly committed by an American service member, (54) Japanese authorities commonly waive that jurisdiction and thereby permit military prosecution of the member pursuant to the UCMJ. Waivers sometimes follow investigation by the local Japanese police and prosecutor, the extent of which can range from quite minimal to significant. (55) U.S. military investigators typically request to obtain evidence collected by Japanese authorities in the course of their investigation. (56) Upon referral of the case to trial by court-martial, the prosecution seeks to introduce that evidence. (57) The military appellate courts have reviewed numerous such cases involving Japan-based accuseds. Those cases illustrate the flexibility that foreign (particularly Japanese) law enforcement authorities may exercise in conducting a criminal investigation according to their sovereign law. They also frame the analysis of admissibility of foreign-procured evidence in courts-martial.

In United States v. Murphy, a Marine was apprehended by Naval Criminal Investigative Service agents for selling illicit drugs. (58) The Government of Japan asserted jurisdiction over the alleged offense and the Marines released the accused to Japanese police custody. The accused refused to make a statement to the Japanese police. (59) Approximately five weeks later, a local judge advocate--who served as the resident trial counsel (prosecutor) for the installation to which the accused was assigned--met with the accused and advised him of his rights under the Status of Forces Agreement ("SOFA") between the U.S. and Japan. (60) The judge advocate informed the accused that he could not act as his attorney in the matter or discuss the alleged acts under investigation. (61) Rather, he explained:
   [U]nder our system a person has an absolute right to remain silent
   and that nothing adverse can be taken from his right to remain
   silent under our system... [but that] the Japanese system differs a
   little bit, in that should the case go to court and should the
   individual be convicted, the judge takes into consideration whether
   the individual has cooperated with the various investigating
   agencies and whether he has told the truth to those agencies. (62)

The judge advocate told the accused that the United States defers when the Japanese prosecute a case. (63) At trial, the accused testified that he understood from this that the military would only prosecute him if the Japanese did not. (64)

One month later, the Japanese police again attempted to question the accused, who this time made an inculpatory statement during a two-hour interview. (65) In accordance with the SOFA, before the interrogation, the Japanese police, advised him of rights afforded him under Japanese law, which included a statement on the fight to remain silent. (66) During this rights advisement, the interpreter also mentioned that a failure to confess and cooperate could be held against an accused and could result in a harsher sentence in Japanese court. (67) The Japanese indicted the accused, and ultimately imposed a suspended sentence for violating Japanese drug laws. Less than a week after the Japanese indictment, the military preferred charges of conspiracy against the accused, of which he was convicted at a court-martial. (68)

On appeal, the accused attacked admission of his statements to the Japanese, arguing they were involuntary. The court acknowledged he could have interpreted the judge advocate's statement to him to mean that the military would not use any statement he made to the Japanese police. (69) The court further acknowledged that the rights advisement by the Japanese interrogators did not satisfy the requirements of Article 31, which is inapplicable to foreign interrogators. (70) Since the UCMJ does not apply to investigations by foreign police officers, (71) foreign police do not have to advise an accused of Article 31 rights prior to interrogation. The court reiterated the problem faced by military members serving in foreign countries:
   [W]e perceive practical difficulties in implementing such a rule
   where a foreign interrogation is involved. Initially, we note that
   such advice may be inconsistent with the law of the foreign
   country involved. Furthermore, government counsel has asserted
   in the present case.., that the law of the Federal Republic of
   Germany would permit adverse comment upon the silence of an
   accused. Thus, an accused can actually be harmed if he is tried
   by a foreign court and attempts to assert his rights consistently
   with American law. (72)

An accused service member outside the United States should know his UCMJ and U.S. constitutional rights, but must also learn the rights afforded him by the host country and understand any apparent inconsistency between the two systems. The difficulty of reconciling two legal systems clearly increases the likelihood of confusion to the accused's detriment. (73)

The Murphy court examined trial court's admission of the accused's statement to the foreign interrogator, focusing on whether it was voluntary. (74) The court found that the local judge advocate's standard advice to the accused, consistent with similar advice provided to all service members suspected of offenses under Japanese law, did not suggest anything of a coercive nature. (75) The court also held that the Japanese police did not coerce the accused by informing him that cooperation with Japanese interrogators may result in a more lenient sentence and that failing to cooperate will not result in a harsher sentence. (76) Despite the negative inferences under Japanese law that may arise from failing to cooperate--by remaining silent--the court found no impairment of the accused's ability to exercise free will. (77) The collective advice the accused received from both sides simply permitted him to make an "an informed and intelligent appraisal of the risks involved." (78) The court acknowledged that that advice may have "prompted" the accused to make an incriminating statement, but nevertheless ultimately held that it did not constitute an unlawful inducement to make an incriminating statement. (79) Accordingly, the court held that the accused's statement was voluntary and properly admitted as evidence. (80)

Lower appellate cases provide further guidance on the use of statements procured through foreign interrogations. In United States v. Frostell, Japanese authorities arrested the accused Marine on suspicion of alleged drug offenses. (81) Within hours of the arrest, the local judge advocate briefed him on his rights under the SOFA, including the right to remain silent, and further informed him that if found guilty at trial, the Japanese judge would consider his cooperation in fashioning a sentence. (82) The judge advocate told the accused that the military would not try the accused for the same offense tried by the Japanese, which--similar to Murphy--the accused broadly understood to mean that that the military would not prosecute at all if the Japanese prosecuted. (83)

For several days following his apprehension, the accused maintained his silence. (84) During that time, the Japanese police informed him of the potential benefits of cooperation. According to the accused, the police told him that a Japanese judge considers an accused's cooperation when deliberating on a sentence and that failure to cooperate could result in a harsh sentence often years and involuntary employment of a lie detector in court. (85) The accused subsequently provided inculpatory statements on seven days over the span of twenty-two days. Prior to each statement, the Japanese police advised him of his right to remain silent and of the suspected offense. (86)

The Frostell court concluded that the interviews, which lasted no more than two hours, did not overwhelm the accused and permitted him the "necessary physical comforts." (87) The court opined that the police merely informed the accused of the relative advantages of cooperation and the potential disadvantages of noncooperation. (88) The court allowed that the Japanese interrogator's alleged statement suggesting a possible sentence of ten years' imprisonment "might represent a threat sufficiently coercive to render a statement involuntary." (89) However, the court observed that each statement signed by the accused contained corrections and modifications over his signature, and each contained an acknowledgement by the accused that the statement had been made voluntarily. (90) Accordingly, the court affirmed the trial court's admission of the statements. (91)

Another case involving an Army accused illustrates military appellate courts' reluctance to find statements procured by Japanese investigators involuntary. In United States v. Talavera, the Japanese interrogated the accused--who was arrested on suspicion of having committed felony murder incident to a robbery with a Japanese accomplice--over 11-12 days, four to six hours each day, with an hour for lunch and a 20-30 minute afternoon recess. (92) Prior to interrogation, the Japanese police informed the accused of his right to remain silent and right to counsel. The accused declined both and chose to speak, and the trial court ruled his statements voluntary and therefore admissable at his subsequent court-martial. Even had the accused invoked either right, though, the court acknowledged that Japanese law does not require the police to stop the interrogation or allow an accused to have an attorney actually present during the interrogation. (93) The court found all of the accused's statements to be voluntary and properly admitted in evidence at his court-martial. (94)

The court examined the advice provided to the accused or lack thereof, the conditions of restraint, the accused's physical and mental condition, and the number, length and nature of the questioning sessions. (95) The court found no coercion inherent in the circumstances, conduct, and tactics of the interrogation. (96) The court did recognize that the interrogation sessions were longer than normal military investigations, but noted this was necessitated by the use of an interpreter. (97) In fact, the court surmised that the lag in time resulting from the translation may have actually benefitted the accused. (98) The court focused instead on numerous other hallmarks of voluntariness concerning the accused's statements: that he confessed initially and in his own handwriting only two days after his arrest, and stated he would have done so sooner but for his fear of reprisal from his accomplice; that his subsequent statements merely expanded and added details to the original confession, placing primary blame on his accomplice in the obvious hope of gaining leniency for himself. (99)

A recent unpublished opinion by the Navy-Marine Court of Criminal Appeals illustrates a contrary application of Article 31(d) to analysis of foreign-procured statements. In United States v. Kofford, the accused was placed in military pretrial confinement (100) after waiving his right to counsel--despite an initial request for counsel--and admitting to receiving a large amount of illegal drugs through the mail. (101) His commander placed him in pretrial confinement "solely for the Japanese" under the SOFA, despite that the Japanese had made no such request. (102) At the confinement review hearing five days later, an appointed attorney assisted the accused but they did not form an attorney-client relationship. (103)

The foreign criminal jurisdiction officer (a Major) (104) met with the accused in pretrial confinement and told him that he should fully cooperate with the Japanese investigation because it would benefit him in the Japanese courts. The officer also stated that the Marine Corps would only administratively separate rather than court-martial the accused if he was convicted and sentenced in a Japanese court. (105) A noncommissioned officer also gave the accused a SOFA briefing in which the NCO reiterated that cooperation with the Japanese was in the accused's best interests. (106) After 29 days' confinement, the military escorted the accused back and forth to Japanese investigators for a series of 20 interrogations over the next 72 days, resulting in ten written confessions in total. (107)

During that entire time, the accused was not provided with either an appointed military defense counsel or a Japanese attorney. (108) The court discussed in detail how the SOFA and the Japanese Penal Code, and the military's and Government of Japan's interpretation of such, worked against the accused in this case, resulting in his apparent legal limbo. (109) He was never provided a U.S. Government-appointed Japanese lawyer because the Japanese had not officially charged the accused, and he was never provided military defense counsel because no court-martial charges had been preferred. (110) Regardless of the reasons, the accused spent almost four months in confinement before receiving access to a lawyer.

Although the accused did not raise the issue at trial, the court assessed whether the officer's advice to him granted de facto immunity. (111) The court answered this question in the negative, finding that the officer had not made any quid pro quo or actual promise of immunity. (112) But the officer's comments did affect and influence the accused: (113) he was told that cooperation with the Japanese could result in a better outcome in the Japanese courts, that his cooperation would make a Japanese conviction more probable, and that a Japanese conviction would result in his administrative discharge from the military. (114) Importantly, though, it was unclear whether he was aware that his confessions to the Japanese could be used against him at court-martial. (115) Without that knowledge, his decision whether to cooperate with the Japanese was "uninformed." (116)

The court held that the accused's confinement without access to legal counsel during the course of more than 20 interrogations, preceded by certain "advice and assurances" made by the officer and noncommissioned officer, amounted to "unlawful influence" or "unlawful inducement" within the meaning of Article 31(d), UCMJ. (117) The court therefore ruled the accused's statements involuntary and inadmissible at his court-martial. (118)

The cases discussed above demonstrate the wide latitude concerning foreign law enforcement practices in U.S. military courts. In general, military courts will admit foreign-procured evidence absent particularly egregious conduct by foreign investigators. The courts' assessment of that conduct focuses only on the voluntariness of the accused's statement according to the legal standards prescribed by U.S. common law. The result is often to the disadvantage of the service member.


Admission at a court-martial of evidence seized by U.S. law enforcement requires compliance with the UCMJ in particular and the U.S. Constitution in general. (119) As noted above, military judicial evaluation of an investigation by foreign law enforcement with participation by U.S. investigators applies the same standards as for an investigation conducted solely by U.S. personnel. (120) If U.S. assistance to the investigation amounts to "participation," then the search must comply with the Fourth Amendment (and the UCMJ) for evidence to be admissible. (121) An accused may object to the introduction of evidence obtained in violation of his constitutional rights against unlawful search and seizure. (122) Operation of the exclusionary rule encourages American civilian and military investigators to conduct their activities in accordance with statutory and constitutional law. (123) But what about searches carded out exclusively by foreign officials?

In 1975, the Court of Military Appeals squarely addressed that issue. In United States v. Jordan, British police stopped the accused's car because it matched the description of one possibly involved in a spate of off-base burglaries. (124) The officer took the accused into custody, interrogated him, informed him that the officer wished to search the accused's house, and asked if the accused objected to it. (125) The accused relented but never expressly "agreed" to the search. (126) He simply replied "with nothing more than a statement that he was powerless to prevent it ... [which was] no more than acquiescence to police authority." (127)

The court determined that the accused had not voluntarily consented to the search, and therefore, the evidence was seized in violation of the Fourth Amendment. (128) The Government argued that according to a 1954 case, (129) federal courts may use evidence obtained in an illegal search by foreign police. (130) The court found the holding in that case did not survive the Supreme Court's 1961 landmark decision in Mapp v. Ohio, (131) which announced the modern exclusionary rule. (132) In no uncertain terms, the court held that for purpose of determining the admissibility of evidence in military courts-martial, the Fourth Amendment directly applied to the foreign police actions involving U.S. military personnel. (133)

Less than a year later, on petition for reconsideration of the initial opinion, and after permitting input from all service branches, the court modified its conclusion. (134) The court distinguished searches conducted solely by foreign authorities from those conducted with participation by U.S. officials. (135) The court no longer required that foreign searches--carried out with no American participation--adhere to Fourth Amendment standards. (136)

The court did, however, require the government to show a search by foreign officials complied with "the law of their sovereign," as a prerequisite for admission of resulting evidence. (137) This rule had little, if any, support from prior precedent in military justice law. Post-Jordan, courts-martial had to consider and apply foreign law to determine admissibility of evidence seized during foreign-initiated searches.

The court added that such a search must not "shock the conscience of the court." (138) Prior to Jordan, the exclusionary rule did not apply to "illegal" evidence seized by foreign (or state) agents. (139)

The court in Jordan reasoned that foreign investigators might follow their own law (or lack thereof) during a search, but might still engage in a practice directly contrary to U.S. law. Under Jordan's two-prong test, a court could still exclude certain evidence seized outside the bounds of basic decency. The second prong preserved the relevance and primacy of U.S. law over foreign law in such cases.

The Jordan test generated opposition from the Joint Service Committee on Military Justice in its 1980 Analysis accompanying MRE 311 (c):
   After careful analysis, a majority of the Committee concluded that
   that portion of the Jordan opinion which purported to require that
   such foreign searches be shown to have complied with foreign law is
   dicta and lacks any specific legal authority to support it. Further
   the Committee noted the fact that most foreign nations lack any law
   of search and seizure and that in some cases, e.g., Germany, such
   law as may exist is purely theoretical and not subject to
   determination. The Jordan requirement thus unduly complicates trial
   without supplying any protection to the accused. Consequently, the
   Rule omits the requirement in favor of a basic due process test.

Thus, the Analysis effectively overruled Jordan and negated analysis of foreign law regarding evidence produced during foreign searches. (141)

Shortly after the revised Analysis, two subsequent opinions from the Court of Military Appeals on the same day seemed to reach conflicting conclusions whether the Jordan requirement was dicta or not. (142) One concurred with the Committee's Analysis while the other appeared to suggest that the foreign law requirement still applied. In United States v. Bunkley, the court found that the surrounding facts and circumstances of an investigation in Germany did not transform "the search into a 'foreign search,' which, under United States v. Jordan, would render the admissibility of evidence obtained in the search subject to 'prerequisite' proof 'that the search ... was lawful, applying the law of ... [the foreign] sovereign." (143) In United States v. Morrison, the court stated that the pronouncement in Jordan "was not required by the facts of the case" due to U.S. participation in the search, thus making any discussion of foreign-only searches dicta. (144) The contradiction can perhaps be attributed to the fact that the opinions were written by different judges: Judge Cook wrote the opinion in Bunkley; (145) Judge Everett wrote Morrison. (146) Although the opinions appear to conflict, leaving some uncertainty as to the state of the law, the Committee's Analysis clearly states that foreign law is not to be consulted when determining admissibility of evidence resulting from a foreign search.

Military case law has made clear that military courts will not apply U.S. constitutional law and the UCMJ to a search conducted solely by foreign law enforcement. (147) In fact, no prescribed law or standards exist by which to analyze the legality of a foreign search. Nevertheless, some foreign-obtained evidence may not be admissible in a court-martial. Military courts must hold inadmissible evidence produced by a foreign search or seizure which subjected the accused to "gross and brutal maltreatment." (148) But few decisions have ever cited that rule and applied that standard to the particular facts of the case. (149) To date, no court has further clarified or explained what actually constitutes "gross and brutal maltreatment." (150) This suggests that military courts neglect a key aspect of the evidentiary rules applied to foreign searches. By comparison, several federal court decisions have addressed the relevance of foreign law to admissibility of evidence obtained through foreign searches. In determining whether a foreign search was reasonable and did not "shock the judicial conscience," the U.S. Court of Appeals for the Ninth Circuit in United States v. Barona considered whether the foreign wiretap violated that foreign law itself. (151) To do so, the court obviously had to review that country's law. (152) The court appeared to suggest that if a search is unlawful under foreign sovereign law, it might indicate that the search was so unreasonable that it shocks the judicial conscience, thereby rendering any evidence obtained inadmissible. (153) Prior to Barona, the Ninth Circuit had affirmed admission of evidence secured in violation of the foreign sovereign's wiretap law. (154)

In cases where U.S. agents work together in a joint venture with foreign agents, the Ninth Circuit still considers an analysis of foreign law relevant to determining the admissibility of resulting evidence. In these cases, the court has held that "the law of the foreign country must be consulted at the outset as part of the determination whether or not the search was reasonable." (155) If foreign law enforcement--acting in tandem with U.S. law enforcement--violates its own law, the search may be found unreasonable. (156) If the court concludes that a search violated foreign law, the Ninth Circuit then considers application of the good faith exception to the exclusionary rule. (157) According to the Ninth Circuit, this "exception is grounded in the realization that the exclusionary rule does not function as a deterrent in cases in which the law enforcement officers acted on a reasonable belief that their conduct was legal." (158) The Ninth Circuit applied this principle to foreign searches. (159) As such, if U.S. agents relied in good faith upon the foreign agents' assertions that the search was legally valid under that foreign law, then the search would be considered reasonable for purposes of admitting any seized evidence at a U.S. criminal trial. (160) Other federal courts have followed the Ninth Circuit's application of foreign law. (161)

When considering admissibility of evidence obtained through a foreign search, military courts lack clear guidance. With foreign-obtained statements, the courts examine voluntariness according to well-established standards employed by U.S. federal district courts and U.S. military appellate courts. By contrast, evidence from foreign searches will be admitted absent "gross and brutal maltreatment"--without any examination of compliance with foreign law, and without further guidance or interpretation applying that quite vague standard.


The final section of this article advocates modification of existing jurisprudence: military courts should consider foreign law to assess admissibility of foreign-obtained evidence. While foreign law cannot be the sole or dispositive factor, it should be one factor contributing to the analysis of the voluntariness of a statement and/or the reasonableness of a search.

A. Statements and Foreign Law

Current case law completely disregards foreign law in analyzing statements obtained by foreign law enforcement. It ignores whether foreign agents act in accordance with or fall well outside the bounds of their own law. Although relatively simple to apply--in that courts need not attempt to analyze unfamiliar foreign law--current jurisprudence insufficiently protects fundamental fairness and potentially encourages improper collusion between U.S. military authorities and foreign law enforcement to the detriment of military accuseds' UCMJ and U.S. constitutional rights.

Consider that all statements obtained by foreign law enforcement ultimately fall into one of the following four categories: (162)

(1) Involuntary statement made after rights advisement provided pursuant to foreign law. Example: Country X requires advisement of two rights, and the foreign interrogator properly advises accused of both rights. Nevertheless, the military court rules the statement inadmissible as involuntary due to surrounding circumstances.

(2) Involuntary statement made after rights advisement which does not comply with foreign law requirements. Example: Country X requires advisement of two rights, and the foreign interrogator advises accused of only one right. The military court rules the statement inadmissible as involuntary due to surrounding circumstances.

(3) Voluntary statement made after rights advisement provided pursuant to foreign law. Example: Country X requires advisement of two rights, and the foreign interrogator properly advises accused of both rights. The military court rules the statement admissible as voluntary, based on surrounding circumstances.

(4) Voluntary statement made after rights advisement, which does not comply with foreign law requirements. Example: Country X requires advisement of two rights, and the foreign interrogator advises accused of only one right. The military court rules the statement admissible as voluntary, despite apparent procedural violation of foreign sovereign law.

Categories 1, 2, and 3 are not unfavorable or unduly unfair to an accused and are not at issue. In Category 1, the statement is admissible under foreign law due to a proper rights advisement beforehand. Despite the foreign law, however, the statement is ruled involuntary and therefore inadmissible by a military judge due to the surrounding circumstances, such as a lengthy detention or interrogation. In this case, the accused benefitted according to his rights under the foreign law, and received the further protection under U.S. law.

In Category 2, the military judge rules the accused's statement involuntary and therefore inadmissible, where it would also have been inadmissible according to application of foreign law due to an improper rights advisement. In this instance, the military court can be said to have effectuated the purpose of foreign law, consistent with like decisions of the foreign country's courts and furthering the influence of legal decisions on law enforcement procedure and conduct. The accused benefits from the foreign sovereign following its law and the additional protections under U.S. law.

In Category 3, the statement is found to be voluntary and admissible, and that it followed a proper rights advisement under the foreign sovereign's law. Fairness to the accused is assessed according to his rights under both foreign and U.S. law.

Category 4 presents the troubling situation which leaves an accused in a legal no-man's land without protection under foreign sovereign law or U.S. law. In this category, the accused's statements obtained unlawfully (in violation of foreign law) may still be admitted and used against him in a court-martial. This result makes the U.S. an agent of the foreign sovereign's violation of its own law. To further illustrate, imagine foreign law enforcement purposefully or through gross negligence fails to advise a service member of his rights as required by that sovereign's law. Aware of the illegal questioning and the inadmissibility of the accused's statement in the foreign courts, foreign authorities decline to prosecute and waive jurisdiction. U.S. military authorities prosecute the accused under the UCMJ and seek to introduce the statement at his court-martial. The military judge admits the statement into evidence based on the assessment of voluntariness, irrespective of the foreign rights advisement violation.

Foreign law enforcement investigators, who often work closely with their U.S. military counterparts, could thus circumvent an accused's rights in order to procure incriminating statements. A service member with little understanding of his rights under foreign law may experience a severe disadvantage upon interrogation by foreign investigators, who may purposefully not advise him of his rights in order to enhance the likelihood of obtaining incriminating information from him. Upon receipt of such evidence, the U.S. military may rely upon it to prosecute the accused in a court-martial, subject to admission of that evidence according to the voluntariness test. But was such a statement truly voluntary? If local law enforcement knowingly evaded a required rights advisement with the intention of providing the evidence to the military for its use, was that statement truly voluntary? What about any false representations by foreign law enforcement to the accused? Should we reward improper practices of local law enforcement?

Any test for voluntariness should consider foreign law and whether foreign law enforcement followed its own law in pursuing and obtaining a statement. An accused with complete information and understanding of his rights--both pursuant to foreign and U.S. law--can make a voluntary statement. An accused without such information and understanding cannot.

As stated above, this article does not suggest that foreign law should be solely dispositive when analyzing the admissibility of statements obtained by foreign law enforcement. Adopting such a standard would result in inconsistent decisions regarding admissibility. To illustrate, consider a statutorily-required rights advisement in Country X that informs an accused of two rights (right to silence and right to counsel), as compared to the rights advisement in Country Y which informs an accused of only one right (right to silence). If only foreign sovereign law controlled the admissibility of an accused foreign-procured statement in a military court, differences between the foreign laws in Country X versus Country Y would cause different decisions despite identical factual circumstances. That would work unacceptable unfairness and therefore cannot be the appropriate analysis.

The potential for unfair and inconsistent application does not, however, rule out all consideration of foreign law. There is an added benefit to analyzing a statement within the context of the foreign law in which it was obtained, in addition to and also as part of the assessment of voluntariness. Some consideration of foreign law can inform the voluntariness inquiry. Consideration of foreign law may also deter any possible collusion between local foreign police and their military counterparts. Just as U.S. military and constitutional law operates to restrict law enforcement procedure to ensure against violations of accused's rights, so should foreign law operate to constrain the activities of foreign investigators. Admitting evidence against accuseds in courts-martial obtained in violation of foreign law undermines the foreign nation's sovereignty. It may even create a perverse incentive for foreign investigators to avoid compliance with foreign law in order to facilitate U.S. military prosecution--making the U.S. the agent of such malfeasance. Admitting evidence otherwise inadmissible if obtained by U.S. military authorities permits prosecution of an accused where such prosecution would not otherwise have been possible by either party without the other's role. Foreign police could passively collude to procure a statement that neither foreign prosecutors nor the U.S. military could use independently. We can characterize this potential as the danger of improper "wink wink" investigations and prosecutions.

Such consequences would effectively contravene fundamental rights afforded to service members under the UCMJ. As stated above, under the U.S.-Japan SOFA, for example, the Japanese must allow U.S. service members to receive a SOFA briefing prior to all interviews and interrogations. (163) That briefing informs the member of a multitude of rights, some arising from the Constitution of Japan and others arising from the Japanese Code of Civil Procedure. (164) The United States deems this rights advisement critical to service members' decisions when facing potential prosecution for criminal offenses in Japan. (165) It should follow that military courts' disregard of violations of those rights necessarily conflicts with the purpose and intent of the SOFA provisions concerning jurisdiction over and procedure regarding alleged criminal offenses committed by U.S. service members in Japan.

B. MRE 311(c) and the Future of Foreign Searches

As with statements produced by foreign interrogations, analysis of evidence obtained during foreign searches ignores any application of foreign law. This position apparently originated in the 1980 Analysis to the Military Rules of Evidence by the Joint Service Committee on Military Justice. Unfortunately, the Committee's Analysis remains incomplete and was not the appropriate vehicle to dispense with the requirement, regardless of whether it originated in dicta in the Jordan decision. In effect, the Committee "legislatively" overruled Jordan, improperly exceeding its authority and responsibility to effectuate congressional intent. (166)

The following scenario demonstrates the enhanced protection of an accused's rights that results if admissibility requires foreign law enforcement must comply with their own law. A foreign law enforcement agency has a good working relationship with its counterparts on a local U.S. military base. They regularly coordinate with their American counterparts, although they do not always engage in joint investigations. The foreign agents suspect an American service member of off-base illegal drug offenses--violations of both local and U.S. military law. Initially, the foreign agents do not notify U.S. personnel of the investigation, which might also involve local nationals. Contrary to their own country's law, the foreign agents intentionally and wrongfully intercept the service member's communications, fully aware of the illegality of such investigative procedures. Nevertheless, the evidence thus gathered substantiates the service member's alleged crimes. The foreign agents conclude that the evidence was collected through unlawful means and will be inadmissible in any effort to prosecute the accused under local law. So, they provide the illegally procured evidence to U.S. military authorities and waive jurisdiction. As the law stands today, a court-martial would likely rule that evidence admissible because it was not obtained through "gross and brutal maltreatment."

When the Committee prescribes no protection to an accused against whom foreign-obtained evidence was procured unlawfully, the same argument applies equally to the justification for prohibiting domestic-obtained evidence when procured unlawfully. If a military investigator violates an accused's constitutional right to be free from an unlawful search, the remedy is exclusion of that evidence in order to deter future such actions by law enforcement. That same rationale should apply to foreign agents who act in contravention of their own law. Disallowing evidence obtained by foreign agents in violation of foreign sovereign law will promote consistent and fair treatment of U.S. military personnel as no different than the citizens and other guests of the foreign country.

The Ninth Circuit cases previously discussed (see supra section IV) highlight the potential complexity if military courts consider foreign law. However, those cases also demonstrate that it is not impractical or impossible to decipher and adequately apply foreign law, when warranted. Again, this article does not advocate an examination of foreign law in all cases or even in any particular case. Rather, foreign law should not be completely discounted as irrelevant for all purposes. The introduction of foreign law at courts-martial may highlight for the trial court whether foreign law enforcement acted illegitimately in violation of the rights of the accused service member. This should factor in determining whether a search and seizure was "gross and brutal maltreatment"--or the standard thus currently defined should be revised to more explicitly incorporate this information. Knowing whether foreign law enforcement violated its own law, with or without intending to provide any evidence to U.S. military authorities, requires a deeper insight into how the evidence was obtained and whether it would be unfair or unjust to admit at trial.


Due to the stationing of U.S. military personnel in numerous countries, foreign law enforcement routinely investigates U.S. service members for alleged crimes committed in those countries. Military courts often must consider evidence gathered by such investigations. The current rules and law regarding the admissibility of that evidence should be closely re-examined.

This article does not advocate mandating strict adherence to foreign law as the standard for admissibility. That would subordinate U.S. military authorities to the actions of foreign police. However, when foreign police directly and intentionally violate their own law, that should affect how a U.S. military court considers foreign-procured statements of the accused. The violation of foreign law should be one factor of many to inform assessments of voluntariness.

The same principle should apply to the analysis of evidence obtained by foreign searches and seizures. Current law provides that the fruits of foreign searches are admissible as long as the search did not subject the accused to "gross and brutal maltreatment." The courts have not further defined that vague standard. Application or modification of that standard should incorporate whether the foreign search was conducted in accordance with or in violation of local sovereign law. Local police may actively violate their own law to catch the alleged criminal service member and turn him and the evidence over to U.S. military authorities for court-martial prosecution. To protect the consistent deterrence of improper practices by foreign police, the U.S. military legal system should not allow admission of evidence procured by such practices. Consideration of foreign law compliance in determining admissibility of foreign-obtained evidence would remedy these issues.

(1) See generally Major Steven J. Lepper, A Primer on Foreign Criminal Jurisdiction, 37 A.F.L. REV. 169 (1994); Colonel (Ret.) Richard J. Erickson, Status of Forces Agreements: A Sharing of Sovereign Prerogative, 37 A.F.L. REV. 137 (1994); Jamie M. Gher, Status of Forces Agreements: Tools to Further Effective Foreign Policy and Lessons To Be Learned From the United States-Japan Agreement, 37 U.S.F.L. REV. 227 (2002); Youngjin Jung and Jun-Shik Hwang, Where Does Inequality Come From? An Analysis of the Korea-United States Status of Forces Agreement, 18 AM. U. INT'L L. REV. 1103 (2003); John W. Egan, The Future of Criminal Jurisdiction Over the Deployed American Soldier: Four Major Trends in Bilateral U.S. Status of Forces Agreements, 20 EMORY INT'L L. REV. 291 (2006).

(2) See, e.g., Kaho Shimizu, Okinawa rape case sparks resentment, THE JAPAN TIMES ONLINE (Feb. 13, 2008), (last visited Feb. 1, 2012). The alleged rape of a 14-year old Japanese girl by a U.S. Marine in Okinawa in 2008 led high-level Government of Japan officials to compare it publicly to an earlier incident also in Okinawa in 1995, in which three U.S. servicemen raped a 12-year old Japanese girl. The 1995 incident caused widespread protests, and eventually contributed to negotiation of a 1996 U.S.-Japan agreement to relocate U.S. bases in Okinawa. Opponents of the United States' permanent base presence in Japan still often cite the 1995 incident, along with other crimes committed by U.S. service members.

(3) There are currently 38,000 U.S. service members from all four branches of the military stationed ashore in Japan and another 11,000 afloat, dispersed throughout the country at 85 facilities, including seven main bases. U.S. Forces Japan, (last visited Feb. 1, 2012).

(4) MANUAL FOR COURTS-MARTIAL, UNITED STATES, MIL. R. EVID. 305(h) and 31 l(c) (2008) [hereinafter MCM].

(5) MCM, supra note 4, MIL. R. EVID. 305(h)(2) (emphasis added).

(6) The UCMJ was passed by Congress on May 5, 1950, signed into law by President Harry S. Truman, and became effective on May 31, 1951. Prior to the implementation of the UCMJ, there was no universal system of military justice laws applicable to all services.

(7) See United States v. Grisham, 16 C.M.R. 268, 270-271 (C.M.A. 1954). In Grisham, the court had the first opportunity, post-1951 Manual for Courts-Martial, to address whether Article 31(b) had any impact on foreign interrogations in a case where U.S. military policemen and a military-employed interpreter were present during an interrogation by French authorities but did not participate in the questioning. The court took the literal approach in applying the UMCJ, which stated "No person subject to this code shall interrogate ... without first informing him [of his rights]" and held that Article 3 l(b) rights advisement was not required because French officials are not "subject" to the UMCJ. See also United States v. Swift, 38 C.M.R. 25, 29-30 (C.M.A. 1967) (held that mere presence of U.S. military investigator during interrogation by independently acting German police did not require Article 31 (b) rights advisement from the military investigator or warnings from the German police that would satisfy the requirements under Article 31 (b)).

(8) The amendment to Mil. R. Evid. 305(h)(2), Manual for Courts-Martial, United States, 1969 (revised edition), provided: "An interrogation is not 'participated in' by military personnel or their agents or by the officials or agents [of a state or the federal government] merely because they were present at an interrogation conducted in a foreign nation by officials of a foreign government or their agents, or because they took steps to mitigate damage to property or physical harm during the foreign interrogation." 45 FR 16932, Exec. Order No. 12198, 1980 WL 356243 (March 12, 1980).

(9) MCM, supra note 4, MIL. R. EVID. 305(h)(2).

(10) United States v. French, 38 M.J. 420, 427 (C.M.A. 1993).

(11) United States v. Koch, 15 M.J. 847, 849 (A.F.C.M.R. 1983).

(12) United States v. Jones, 6 M.J. 226, 230 (C.M.A. 1979).

(13) Id. at 229. See also Grisham, 16 C.M.R. at 270 (holding foreign agents not required to provide service members with any Article 31-type rights advisement, but added sharp cautionary comment: "[T]o make crystal clear that which must be implicit in the view expressed here, we need only observe that 'person[s] subject to this code' may not, in the course of an investigation, evade by subterfuge the duty imposed by this Article. If one so 'subject' were to utilize the services of a person not subject to the Code as an instrument for eliciting disclosures without warning, we would, without hesitation, deal sternly with such a disregard of a salutary feature of the legislation.").

(14) See United States v. Vidal, 23 M.J. 319 (C.M.A. 1987). In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court held that an investigator may not continue custodial interrogation if the suspect requests counsel.

(15) Id. at 320-21.

(16) Id. at 321. Interestingly, the German police form, written in English, advised a suspect of his right to remain silent and that any statement may be used against him, his right to counsel, and inexplicably that: "If I am subject to the Uniform Code of Military Justice, appointed counsel may be military counsel of my own choice if he is reasonably available."

(17) Id. at 323. The court stated that "a request for counsel made in connection with a foreign investigation may result only from the American suspect's unfamiliarity with the foreign legal system and does not necessarily mean that the suspect is unwilling to talk to an American investigator until he has been provided counsel. The suspect is adequately protected if he is warned of his rights under American law when first questioned by American officials."

(18) Id. The court stated: "Generally, the actions and the knowledge of officials of a foreign nation are not imputed to American authorities in connection with the application of American constitutional guarantees." This rule is distinct from those investigations carried out by separate military personnel. Once a service member has requested counsel to any military person in any investigative chain, all questioning must cease unless the service member re-initiates the interrogation. See, e.g., United States v. Goodson, 22 M.J. 22, 23 (C.M.A. 1986) (request for counsel made to military policeman who apprehended suspect was imputed to military police investigator); United States v. Reeves, 20 M.J. 234, 236 (C.M.A. 1985) (earlier request for counsel to military investigator was imputed to company commander's later questioning).

(19) Vidal, 23 M.J. at 323; see also United States v. Dock, 40 M.J. 112, 115 (C.M.A. 1994) (referring to this rule as the "overseas exception" to Edwards, 451 U.S. 477, for the military); United States v. Coleman, 26 M.J. 451, 452 (C.M.A. 1988) (Army investigator's knowledge that suspect had refused to make statement to German police did not prohibit questioning by the military after proper Article 31 rights advisement); United States v. Hinojosa, 33 M.J. 353, 355 (C.M.A. 1991).

(20) MCM, supra note 4, MIL. R. EVID. 311(c).

(21) MCM, supra note 4, MIL. R. EVID. 311(C)(3) ("A search or seizure is not 'participated in' merely because a person is present at a search or seizure conducted in a foreign nation by officials of a foreign government or their agents, or because a person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign search or seizure.")

(22) See MCM, supra note 4, MIL. R. EVID. 305(h)(2).

(23) In 1968, Congress redesignated the court as the United States Court of Military Appeals. In 1994, Congress redesignated the court as the U.S. Court of Appeals for the Armed Forces.

(24) United States v. DeLeo, 17 C.M.R. 148, 156 (C.M.A. 1954).

(25) United States v. Jordan, 1 M.J. 334, 337-338 (C.M.A. 1976) ("[W]henever American officials are present at the scene of a foreign search, or even though not present, provide any information or assistance, directive or request, which sets in motion, aids or otherwise furthers the objectives of a foreign search, the search must satisfy the Fourth Amendment as applied in the military community before fruits of the search may be admitted into evidence in a trial by court-martial"). This opinion was a reconsideration of the court's earlier decision in the same case, see United States v. Jordan, 1 M.J. 145 (C.M.A. 1975).

(26) United States v. Jones, supra note 12, 6 M.J. at 230. In Jones, the court characterized certain language in Jordan as dictum, and then indicated that the operative language of "sets in motion, aids, or otherwise furthers the objectives of a foreign search" not only applied to searches where American personnel are not present, but also those searches where American personnel are present. The reversal can also be explained by the drafter of the opinion. In the reconsideration opinion for Jordan, Chief Judge Fletcher wrote the opinion, with Judge Cook strongly dissenting. Judge Cook wrote that foreign governments are like private persons, thereby not subject to the prohibitions of the Constitution, and that mere presence of American officials is not enough to require that foreign police adhere to constitutional principles against unreasonable search and seizures. In Jones, Judge Cook wrote the majority opinion. Chief Judge Fletcher filed a concurring opinion, stating that he "agree[d] with the lead opinion" that Jordan was "inapplicable" to the case at bar, thereby arguing, in effect, that Jordan was not being overruled. See also United States v. Morrison, 12 M.J. 272, 279 (C.M.A. 1982) (The court held that "the rule of Jordan should no longer be applied" such that mere presence, by itself, was not enough to constitute "participation" by U.S. authorities).

(27) Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the Court held that "the prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination" found in the Fifth Amendment of the U.S. Constitution. The Court spelled out in detail what form those safeguards would take: "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney...." Miranda, 384 U.S. at 444.

(28) In fact, the popular conception of Miranda rights ("you have the right to remain silent," etc., as the suspect is handcuffed) is legally inaccurate. Police are not constitutionally required to provide a criminal rights advisement immediately upon arrest/apprehension, only prior to custodial interrogation/questioning.

(29) UCMJ art. 31 (a).

(30) Id.

(31) UCMJ art. 31(b). For an excellent discussion on the historical development of Article 31 (b), see Captain Manuel E. F. Supervielle, Article 31(b): Who Should be Required to Give Warnings?, 123 MIL. L. REV. 151 (1989).

(32) UCMJ art. 31 (d) ("No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.").

(33) See generally Lepper, supra note 1; Egan, supra note 1.

(34) See Stephen C. Thaman, Miranda in Comparative Law, 45 ST. Louis U. L.J. 581 (2001); Craig M. Bradley, Interrogation and Silence: A Comparative Study, 27 WISC. INT'L L.J. 271 (2009).


(36) As Chief of Military Justice in the 35th Fighter Wing, Office of the Staff Judge Advocate, and as Area Defense Counsel at Misawa Air Base, Japan, this author observed numerous cases between 2009-2011 in which the local Japanese police repeatedly questioned an American service member over the course of many days. The tactic is presumably meant to confirm a suspect's story and to ensure that the police "nail down" the facts before sending the case to the regional prosecution.

(37) See Thaman, supra note 34; Bradley, supra note 34.

(38) See supra note 23.

(39) See, e.g., Swift, 38 C.M.R. at 29 ("An independent investigation by a foreign police officer is ... not subject to the Uniform Code."); Grisham, 16 C.M.R. at 270-271.

(40) See, e.g., United States v. Yousef, 327 F.3d 56, 145-146 (2d Cir. 2003) (statements taken by foreign interrogators without the active participation of U.S. law enforcement and not obtained under circumstances that "shock the judicial conscience" are admissible if those statements were voluntary despite the absence of Miranda warnings); United States v. Wolf, 813 F.2d 970, 975 (9th Cir. 1987) (lack of rights advisement by foreign interrogators, without more, does not prevent admissibility of statement); United States v. Abu Ali, 528 F.3d 210, 227 (4th Cir. 2008) (voluntary statements obtained by foreign law enforcement officers, even without Miranda warnings, generally are admissible).

(41) See, e.g., United States v. Murphy, 18 M.J. 220, 223 (C.M.A. 1984).

(42) Id.

(43) MCM, supra note 4, MIL. R. EVID. 304(c)(3); see UCMJ art 31(d).

(44) See MCM, supra note 4, MIL. R. EVID. 305(h) Analysis, at A22-16 (2008).

(45) United States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F. 1996); see also United States v. Dalrymple, 34 C.M.R. 87, 90 (C.M.A. 1963) ("The question of voluntariness is one of fact and a confession must be the product of free choice--of a will not encumbered or burdened by threats, promises, inducements, or physical or mental abuse." (quotation and citation omitted)).

(46) Bubonics, 45 M.J. at 95.

(47) United States v. Freeman, 65 M.J. 451,453 (C.A.A.F. 2008) (citations omitted).

(48) United States v. Jourdan, 1 M.J. 482,485 (A.F.C.M.R. 1975).

(49) Id.

(50) Id. ("Although the statements in question were taken by foreign authorities acting on their own, such does not alter the fact that the standard for measuring voluntariness is controlled by the provisions of Article 31(d) ... and not by foreign law."); see also United States v. Dial, 26 C.M.R. 480, 483 (C.M.A. 1958) ("[N]or need we decide whether the instant confession would, in fact, have been inadmissible in the Texas court. Military courts may convene in all States and foreign countries, and we are not disposed to have military law vary according to the laws of each jurisdiction .... [Article 31] can be applied equally in all jurisdictions, and we prefer not to warp its provisions to comply with local law.").

(51) See MCM, supra note 4, MIL. R. EVID. 305(h) Analysis, at A22-16 (2008) ("The only test to be applied ... is that of common law voluntariness ...[,]" specifically omitting any reference to consideration of foreign law.).

(52) In 1994, Congress redesignated the Courts of Military Review as their respective service branches'

Courts of Criminal Appeals. Thus, the Air Force Court of Military Review was redesignated as the Air Force Court of Criminal Appeals. 53 Jourdan, 1 M.J. at 485.

(54) Agreement Under Article VI of the Treaty of Mutual Cooperation and Security Between the United States of America and Japan, Regarding Facilities and Areas and the Status of United States Armed Forces in Japan, Jan. 19, 1960, 11 U.S.T. 1652, T.I.A.S. 4510, 373 U.N.T.S. 248 [hereinafter "Status of Forces Agreement" or "SOFA"]. See Article XVII, paragraph l(a): "the military authorities of the United States shall have the right to exercise within Japan all criminal and disciplinary jurisdiction conferred on them by the law of the United States over all persons subject to the military law of the United States"; paragraph 1 (b): "the authorities of Japan shall have jurisdiction over the members of the United States armed forces.., with respect to offenses committed within the territory of Japan and punishable by the law of Japan."

(55) At Misawa Air Base, Japan in 2009, during the author's service as Chief of Military Justice, Office of the Staff Judge Advocate, 35th Fighter Wing, Japanese police and prosecutors repeatedly interrogated three Airmen over the course of a couple weeks, in connection with several incidents of off-base vandalism and theft. During the investigation, the U.S. Government never relinquished custody over the Airmen. The Japanese authorities obtained numerous statements from each of the Airmen. Each of the Airmen ultimately made "gomen nasai" (apology) payments to the Japanese victims. Two months after the alleged offenses, the Government of Japan officially waived jurisdiction and did not prosecute them. Afterwards the U.S. Air Force obtained all of the Airmen's statements to the Japanese investigators and used them as evidence in their subsequent prosecutions by courts-martial. Pursuant to Article 66(b)(1), UCMJ, the Air Force Court of Criminal Appeals has reviewed at least one of these cases; see United States v. Holt, 2010 WL 2266251 (A.F.Ct.Crim.App. 2010) (court approved findings and sentence with no discussion).

(56) See, e.g., id.

(57) See, e.g., id.

(58) Murphy, 18 M.J. at 220.

(59) Id. at 222.

(60) Id. Service members who are apprehended or in custody of the Japanese police are entitled to receive a "SOFA briefing" detailing the rights provided to them under the SOFA. Generally, the SOFA briefing is given by a judge advocate from the base legal office. See supra note 54.

(61) Id.

(62) Murphy, 18 M.J. at 222.

(63) Id. In accordance with his practice, the judge advocate stated, "I typically tell the individuals that if the Japanese prosecute the case the Americans will not."

(64) Id. at 222-23.

(65) Id. at 222.

(66) Id. at 223; see Agreed Minutes to the Agreement Under Article VI of the Treaty of Mutual Cooperation and Security Between the United States of America and Japan, Regarding Facilities and Areas and the Status of United States Armed Forces in Japan, Jan. 19, 1960, 11 U.S.T. 1652, T.I.A.S. 4510, 373 U.N.T.S. 248, art. XVII, re para. 9.

(67) Murphy, 18 M.J. at 222.

(68) Id. at 223.

(69) Id. at 224.

(70) Id. at 223.

(71) Id. (citing Swift, 38 C.M.R. at 29).

(72) Id. (quoting Jones, 6 M.J. at 228).

(73) U.S. service members in Japan face such a difficulty. If arrested by Japanese officials, they receive a SOFA briefing, see supra note 60, as follows: "Japanese custom dictates that certain procedures be followed in the event of death, serious injury, or damage to property. Condolence or apology visits should be made by the person who is the immediately cause of the injury, death, or damage and demonstrate sincere regret, regardless of who is ultimately responsible for the mishap. Whether or not a visit is conducted with sincerity, may, in many cases, make the difference between a heavy, light, or suspended sentence, or a waiver of jurisdiction and dismissal of the case." USFJ INSTR. 31-203, supra note 35, ATTACHMENT 4, para. 6. Accused servicemembers who receive this briefing also acknowledge receiving the following "advice": "Unlike under the laws of the United States, I understand that a Japanese prosecutor may use my refusal to speak, and any other refusal deemed to be uncooperative, against me at trial. I understand that the Japanese authorities are usually favorably influenced by a cooperative attitude, but that anything I say may be used either for or against me." Id., para. 4. An accused therefore faces a dilemma. To influence Japanese authorities' disposition of his case, he must "apologize," though to do so effectively admits guilt. To "cooperate" with the Japanese, he must make a statement, which may influence the Japanese to not prosecute him but will also be used as evidence against him at a court-martial. If he does not cooperate with the Japanese, they will most likely prosecute him. His silence, used against him at a Japanese trial, will increase the chances of his conviction.

(74) Murphy, l 8 M.J. at 223-226.

(75) Id. at 226.

(76) Id. at 227.

(77) Id.; see also United States v. Pinson, 56 M.J. 489, 493-495 (C.A.A.F. 2002) (statements made by member being held by Icelandic law enforcement, who had been advised by Icelandic authorities of his right to remain silent and right to counsel under Icelandic law, and who had been informed by an Icelandic attorney of the negative inference that could be drawn by invoking the right to remain silent, were voluntary).

(78) Murphy, 18 M.J. at 227 (citation omitted).

(79) Id.

(80) Id.

(81) United States v. Frostell, 13 M.J. 680 (N.M.C.M.R. 1982).

(82) Id. at 682-683.

(83) Id.

(84) Id. at 683.

(85) Id.

(86) Id.

(87) Id. at 684.

(88) Id.

(89) Id.

(90) Id. The court gave considerable weight to what is a standard line at the end of sworn admissions, which provides that the statement was the product of free will and not coerced. The court failed to mention that it is common practice within law enforcement, including within U.S. Air Force investigative agencies, to request that those lines be placed at the end of sworn statements.

(91) Id.

(92) United States v. Talavera, 2 M.J. 799, 801 (A.C.M.R. 1976).

(93) Id. at 802.

(94) Id. at 803.

(95) Id. at 802 (court must look to "all the facts and circumstances surrounding the taking of the statement" when determining voluntariness) (citing United States v. O'Such, 37 C.M.R. 157 (1967)).

(96) Id. at 801-803; compare, with O'Such, 37 C.M.R. at 164 (statement found involuntary where "accused was questioned all night; subjected to criminological tests and processing all the following day; flung into solitary confinement without even the solace of light; harassed at night with flashlight checks every five minutes; not allowed even to lie down in the daytime; furnished with only a plank and pallet on which to lie at night; and finally, brought forth on [a later evening] to be again subjected to hours of interrogation").

(97) Talavera, 2 M.J. at 803.

(98) Id. (time lag "lessened the likelihood of intense questioning and gave the appellant time to think before responding").

(99) Id.

(100) See MCM, supra note 4, R.C.M. 305(d). A service member may be ordered into pretrial confinement when there is "reasonable belief" that the person committed an offense under the UCMJ and that confinement is "required by the circumstances."

(101) United States v. Kofford, 2006 WL 4571895 (N-M. Ct. Crim. App. Dec. 12, 2006).

(102) Id. at *1.

(103) Id.

(104) Apparently a field grade officer judge advocate, although it is not clear from the opinion.

(105) Kofford, 2006 WL 4571895 at *2.

(106) Id.

(107) Such repeated and lengthy questioning over the course of many days is not uncommon by Japanese

police when interrogating U.S. military members. See supra note 55.

(108) Kofford, 2006 WL 4571895 at *7.

(109) Id. at 6-7. See U.S.-Japan SOFA, supra note 54. Under the SOFA, the U.S. Government retains primary jurisdiction over military-specific offenses and those offenses where the victim is an American; the Government of Japan ("GOJ") has primary jurisdiction over all other offenses, which includes cases involving controlled substances that are prohibited under Japanese law. The SOFA provides that the U.S. Government must "notify" the GOJ when a crime has been committed in which the U.S. does not have primary jurisdiction. Japan then has 20 days to indict the service member. The Japanese Penal Code provides that an individual may only be confined for 23 days without indictment. The court in Kofford made findings of fact regarding the practice of the military to orally notify (rather than providing "formal notice") the GOJ and place service members in military pretrial confinement so that the Japanese could continue their investigation free of this 23-day restrictive period. Similarly, this practice also avoided running the "speedy trial clock" whereby Rule for Courts-Martial 707(a) requires that an accused be brought to trial within 120 days of preferral of charges or imposition of restraint.

(110) Id. The opinion does not mention whether the accused requested counsel at any point during his confinement, after he had waived his right to counsel on the first day he was questioned. The opinion also states that an accused is not "entitled" to a military defense counsel prior to preferral of charges pursuant to Rule for Courts-Martial 307. The accused was in pretrial confinement for several months; it is unclear why the court stated the accused did not have a right to counsel, even prior to preferral of charges.

(111) See MCM, supra note 4, R.C.M. 704(a)(1), 704(a)(2). Transactional immunity provides protection against trial by court-martial for an offense punishable under the UMCJ, whereas testimonial immunity protects against the use of testimony or any derivative evidence from being used against that person at a later court-martial.

(112) Kofford, 2006 WL 4571895 at *4. The other two elements required for de facto immunity to exist are that the accused reasonably believed that the person had authority to grant immunity and that the accused actually relied upon that promise to his detriment.

(113) Id. at *2. The officer had told the accused "that dependent on the outcome of his Japanese trial and if he was convicted and sentenced in the Japanese trial and had some punishment, likely, they would just [administratively separate] him while he was in Japanese confinement."

(114) Id. at *5.

(115) Id.

(116) Id.

(117) Id. at *2. Regarding the issue of improper inducement, see United States v. Carmichael, 45 C.M.R. 304, 305-307 (C.M.A. 1972). In Carmichael, the military investigator told the accused that his commanding officer would not understand the unwillingness to confess and that a confession might result in being prosecuted at a military court-martial rather than in a Chinese court. The court found that such comments did not, as a matter of law, amount to an improper inducement, requiring exclusion of the accused's subsequent statements.

(118) Kofford, 2006 WL 4571895 at *7.

(119) MCM, supra note 4, MIL. R. EVID. 311(c).

(120) Id.

(121) Id.

(122) MCM, supra note 4, MIL. R. EVID. 311 (a)(1).

(123) See, e.g., United States v. Calandra, 414 U.S. 338, 347 (1975) (the "prime purpose" of the exclusionary rule "is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures"); Hudson v. Michigan, 547 U.S. 586, 596 (2006) ("the value of deterrence [of police misconduct] depends upon the strength of the incentive to commit the forbidden act.").

(124) Jordan, 1 M.J. 147 (C.M.A. 1975).

(125) Id. at 147. Participation by military officials did not concern the court. After British police had obtained keys to teh accused's on-base room, the police went to the base police office "out of courtesy." Two military police then accompanied the British officers to the accused's room. The military police did not participate in the search other than unlocking the accused's locker and looking around the room.

(126) Id. When the British officer had "asked [the accused] if he minded if I went and had a look," the accused replied, "Yes, I can't really stop you."

(127) Id.

(128) Id.

(129) DeLeo, 17 C.M.R. 148. The court stated: "[I]f the search with which we are concerned in the case at bar is to be treated exclusively as a French one, it is not essential for the present purpose to inquire how and on what basis it was conducted. It is a well-established rule of Federal law that the Government may use evidence obtained through an illegal search effected by American state or by foreign police--unless Federal agents participated through some recognizable extent therein."

(130) Jordan, 1 M.J. at 148 (C.M.A. 1975).

(131) Mapp v. Ohio, 367 U.S. 643 (1961) (held that the exclusionary rule that prohibits admission of evidence at federal trials obtained in violation the Fourth Amendment applies to state prosecutions through the operation of the Due Process Clause of the Fourteenth Amendment).

(132) Jordan, 1 M.J. at 148 (C.M.A. 1975).

(133) Id. at 149. The court stated, "... [W]e hold that evidence obtained by search and seizure in a foreign country must meet Fourth Amendment standards in order to be admitted in evidence in a trial by court-martial, regardless of whether it is obtained by foreign police acting on their own or in conjunction with American authorities. The extent of an American's constitutional protections in an American court should not be lessened or removed by virtue of the fact that he is ordered to an overseas post for service. It is American judicial power that is being exerted against him and in such a case, it is by American constitutional standards that he should be adjudged." Chief Judge Fletcher wrote the opinion for the majority, with Senior Judge Ferguson concurring. Judge Cook strongly dissented, likening foreign actors to private persons, and arguing that the Fourth Amendment and Fourteenth Amendment apply only to Federal and State action, not private persons. Id. at 149-150.

(134) Jordan, 1 M.J. 334 (C.M.A. 1976). Chief Judge Fletcher again wrote the opinion for the majority, with Senior Judge Ferguson concurring. Judge Cook again dissented. See supra note 133.

(135) Id. at 336.

(136) Id. at 337-338. The court stated: "While we still believe that American scrutiny of foreign searches is desirable where American servicemen are involved, no longer are we willing to exact Fourth Amendment protections as the price for such presence." Id. at 337. The court attributed its about-face regarding the role that "participation" plays in the analysis, to a "re-examination of the underlying purpose of the exclusionary rule." Id. at 336.

(137) Id. at 338.

(138) Id.; see also United States v. Morrow, 537 F.2d 120 (5th Cir. 1976) (stating that the exclusionary rule does not apply to searches by foreign authorities except when the circumstances of the search is so extreme that they "shock the judicial conscience" or when there is participation by American law enforcement officials).

(139) See DeLeo, 17 C.M.R. at 155 ("It is a well-established rule of Federal law that the Government may use evidence obtained through an illegal search effected by American state or by foreign police--unless Federal agents participated to some recognizable extent therein.")

(140) MCM, supra note 4, MIL. R. EVID. 311 (c)(3) Analysis, at A22-18.

(141) Id.; see also Morrison, 12 M.J. at 277 n.4 (stating that MRE 311(c) "dispenses" with "Jordan's requirement" that a foreign search be conducted in accordance with that sovereign law).

(142) Both opinions were issued on 18 January 1982.

(143) United States v. Bunkley, 12 M.J. 240, 248 (C.M.A. 1982) (quoting Jordan, 1 M.J. at 338 (C.M.A. 1976)). Chief Judge Fletcher filed an opinion concurring in the result, and cited Jordan, 1 M.J. 334, 338 (C.M.A. 1976), stating: "I also believe this foreign search, requested by American military police, met fourth amendment standards."

(144) Morrison, 12 M.J. at 278.

(145) Interestingly, in writing Bunkley, Judge Cook cited Morrison immediately after the quoted language in the text accompanying supra note 143, by using the introductory signal "See" rather than a signal indicating contradiction, such as "But see" or "Contra," therefore indicating that Judge Cook did not perceive an inherent conflict between the two cases. Judge Cook dissented in the original opinion issued in Jordan, 1 M.J. 145 (C.M.A. 1975), and in the second opinion on reconsideration, Jordan, 1 M.J. 334 (C.M.A. 1976). See supra notes 133 and 134 and accompanying text.

(146) Judge Fletcher, who wrote the majority opinion in Jordan, 1 M.J. 334 (C.M.A. 1976), filed an opinion concurring in the result, "not to defend this Court's decision in [Jordan] but to explain it." He then acknowledged that "[t]he majority opinion correctly states that the latter part of the rule in Jordan is dicta [i.e., "If the Government seeks to use evidence obtained either directly or indirectly from a search conducted solely by foreign authorities, a showing by the prosecution that the search by foreign officials was lawful, applying the law of their sovereign, shall be a prerequisite for its admission in evidence upon motion of the defense."], and was so recognized by those who worked in the committee which complied the Military Rules of Evidence." Judge Fletcher wrote that Jordan simply "announced an exclusionary rule," much in the same way that Military Rule of Evidence 311 (c)(1) later announced an exclusionary rule. He did not state whether he supported the aspect of the majority opinion that directly overruled Jordan's foreign-law analysis requirement. See supra notes 133, 134, and 145, and accompanying text.

(147) MCM, supra note 4, MIL. R. EVID. 311(C)(3).

(148) Id.

(149) The court in United States v. Pereira stated that the search in question was "not offensive to United States constitutional standards," which does little to define or further illustrate the "gross and brutal maltreatment" standard. 13 M.J. 632, 635 (A.F.C.M.R. 1982). See also United States v. French, 36 M.J. 589, 592 (A.F.C.M.R. 1992) (stating there was no evidence of any "gross and brutal maltreatment" with further application); Koch, 15 M.J. at 849 (mentioning Military Rule of Evidence 311(c)(3) but not discussing "gross and brutal maltreatment"); United States v. Baker, 16 M.J. 689, 690 (A.C.M.R. 1983) (stating that Military Rule of Evidence 311(c) disallows evidence seized through gross or brutal maltreatment").

(150) See id.

(151) United States v. Barona, 56 F.3d 1087, 1091 (9th Cir. 1995). See also Morrow, 537 F.2d at 139 (exclusion of evidence is warranted if circumstances of foreign search are so extreme that they "shock the judicial conscience"); United States v. Behety, 32 F.3d 503, 510 (11th Cir. 1994) (citing exception for searches that "shock the judicial conscience"); United States v. Rosenthal, 793 F.2d 1214, 1230-1231 (11th Cir. 1986) (framing exception as "the conduct of the foreign officers shocks the conscience of the American court"); United States v. Hensel, 699 F.2d 18, 25 (1st Cir. 1983) (same); United States v. Angulo-Hurtado, 165 F.Supp.2d 1363, 1370 (N.D.Ga. 2001) (same).

(152) Barona, 56 F.3d at 1091 (court held that it would review de novo the finding that the wiretaps were lawful under that nation's sovereign law).

(153) Id. ("The wiretaps at issue cannot be said to shock the conscience. Even when no authorization for a foreign wiretap was secured in violation of the foreign law itself, we have not excluded the evidence under this rationale ... nor should we.").

(154) United States v. Peterson, 812 F.2d 486, 491 (9th Cir. 1987).

(155) Barona, 56 F.3d at 1091 (quoting Peterson, 812 F.2d at 490).

(156) Id.

(157) Id. at 1093 (citing Peterson, 812 F.2d at 492). For an in-depth analysis of the good faith exception to the exclusionary rule, see United States v. Leon, 468 U.S. 897 (1984).

(158) Barona, 56 F.3d at 1093 (quoting Peterson, 812 F.2d at 490).

(159) Peterson, 812 F.2d at 492.

(160) Barona, 56 F.3d at 1094. The court in Barona ultimately found that the foreign agents had complied with their own law, and therefore the court did not discuss the validity and good faith of U.S. agents' reliance on foreign agents' assertions were following their own law even though they were not. See also Peterson, 812 F.2d at 492, stating that "objectively unreasonable reliance" will not "cloak the search with immunity from the exclusionary rule." Furthermore, "permitting reasonable reliance on representations about foreign law is a rational accommodation to the exigencies of foreign investigations."

(161) See, e.g., United States v. Stokes, 710 F.Supp.2d 689, 697 (N.D.Ill. 2009) (citing Barona and the good faith exception to foreign searches); United States v. Matthias, 2008 WL 2389081 (D.Virgin Islands 2008) (citing Peterson and Barona); United States v. Ramcharan, 2008 WL 170377 (S.D.Fla. 2008) (same); United States v. Ferguson, 508 F.Supp.2d 1 (D.D.C. 2007) (same); United States v. Juan Vincent Gomez Castrillon, 2007 WL 2398810 (S.D.N.Y. 2007) (same).

(162) This model assumes that every sovereign law has some version of rights advisement, however rich or undeveloped it may be. Assume further that the "involuntary" and "voluntary" descriptors are an after-the-fact determination made by the military judge based solely on U.S. law concerning voluntariness.

(163) See supra notes 60 and 73.

(164) USFJ INSTR. 31-203, supra note 35, ATTACHMENT 4, para. 3.

(165) But see Bunkley, 12 M.J. at 245 (holding that a violation of a contracting party to a provision of an article of the NATO SOFA "confers no right upon an individual servicemen to object, on that ground, to the admission of evidence obtained in a search of his off-base private dwelling that was conducted pursuant to a search authorization by a competent military commander); United States v. Whiting, 12 M.J. 253, 255 (C.M.A. 1982) (holding that the NATO SOFA does not confer upon individuals "any specific rights with respect to searches and seizures" in that an individual could object to admission of evidence seized; but rather, "the obligations are placed on the contracting parties to assist one another in certain law enforcement activities.")

(166) See MCM, supra note 4, MIL. R. EVID. Analysis, at A22-1 ("The Analysis presents the intent of the [Joint Service Committee on Military Justice, which drafted the Military Rules of Evidence]; seeks to indicate the source of the various changes to the Manual, and generally notes when substantial changes to military law result from the amendments. This Analysis is not, however, part of the Executive Order modifying the present Manual nor does it constitute the official views of the Department of Defense, the Department of Homeland Security, the Military Departments, or of the United States Court of Military Appeals.")


* Captain Jacob A. Ramer (B.A., Harvard University; J.D., Chicago-Kent College of Law) is a judge advocate with the United States Air Force currently serving as Area Defense Counsel at Misawa Air Base, Japan. Prior to this assignment, Captain Ramer served as Chief, Military Justice and Chief, Legal Assistance and Preventive Law. His previous publications include: Hate By Association: Joint Criminal Enterprise Liability for Persecution, 7 Chi.-Kent J. Int'l & Comp. L. 31 (2007); Bosnia and Herzegovina: Correspondent Report, and United States of America: Correspondent Report, in Yearbook of International Humanitarian Law 2004, p. 459-469, 601-638 (Avril McDonald ed., Cambridge University Press 2007); and Not So Friendly 'Friendly Fire': U.S. Liability for Foreign Servicemen and Civilians Caught in American Crosshairs, 15 Cal. Int'l L. J. 37 (No. 2, 2007). Captain Ramer is a member of the Illinois Bar.
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