Cooke v. Orser

12 M.J. 335, 1982 CMA LEXIS 19712

• Court: United States Court of Military Appeals
• Decided: February 22, 1982
• Docket: Misc. Dkt. No. 81-59
• Status: Published

Opinions

Opinion of the Court

FLETCHER, Judge:

The petitioner comes before this Court seeking extraordinary relief in the form of a writ of mandamus directing the military judge at his court-martial to dismiss the charges¹ against him. 28 U.S.C. § 1651(a); Chenoweth v. Van Arsdall, 22 U.S.C.M.A. 183, 188, 46 C.M.R. 183, 188 (1973). He asserts that his prosecution for these offenses is barred by a promise of immunity made by an authority competent to make such a promise or ratified by an authority so empowered. See para. 68A, Manual for Courts-Martial, United States, 1969 (Revised edition). In the alternative, he maintains that due process of law requires that his agreement with military authorities be enforced and the charges against him be ordered dismissed. U.S.Const. amend. V.

The trial judge at petitioner’s court-martial entertained a motion to dismiss based on similar grounds. See para. 68a, Manual, supra. After making specific findings of fact and law with respect to this motion,² he denied petitioner’s request. He found that the Commander-in-Chief of the Strategic Air Command (SAC), the original general court-martial convening authority in this case, “did not promise or grant accused immunity from prosecution at any time.”³ He also found that this commander did not “authorize ... his Staff Judge Advocate, or anyone else to make any such promise or grant in his behalf.” ⁴ The trial judge likewise found that the SAC commander “[a]t no time did ... in his capacity as General Court-Martial Convening Authority, ratify any alleged promise of immunity or no prosecution offered ... [to petitioner] by any person purporting to act pursuant to lawful authority.”⁵ Finally, the trial judge held that “[ejquitable immunity or estoppel may not be granted in the absence of actual authority.”⁶

In Part IV of his memorandum of ruling, the trial judge acknowledged, as he had found earlier, that petitioner had “suffered . . . detriment” as a “consequence of unauthorized promises of immunity.” He opined⁷ that the confession of petitioner made in response to these promises and formally “executed on 17 May 1981 was involuntary” and inadmissible because it was unlawfully induced by “unauthorized, defective promises of immunity.”⁸ Moreover, he further noted that any evidence derived from these statements would also be inadmissible.

Espionage, like treason, is a serious offense against the United States Government and the security of the people our Government serves. See Clark and Marshall, A Treatise on the Law of Crimes § 14.00 (7th ed. 1967). An allegation or charge of espionage by itself, however, does not constitutionally justify depriving an accused of due process of law. Abel v. United States, 362 U.S. 217, 219-20, 80 S.Ct. 683, 686, 4 L.Ed.2d 668 (1960). Moreover, in view of Article 1, Section 9, of our Constitution, an accused’s right to due process may not be suspended in the public interest unless in time of a rebellion or invasion. This is basic constitutional law.

A service member, like his civilian counterpart, is “entitled to the due process of law guaranteed by the Fifth Amendment” to the Constitution. Middendorf v. Henry, 425 U.S. 25, 43, 96 S.Ct. 1281, 1291, 47 L.Ed.2d 556 (1976). Of course, in determining what process is due to the American service member, particular deference must be given to the determinations of Congress made under its authority to regulate the land and naval forces. Id. See U.S.Const. art. I, sec. 8, cl. 14. Courts-martial, as courts of “limited jurisdiction,” (Runkle v. United States, 122 U.S. 543, 555, 7 S.Ct. 1141, 1145, 30 L.Ed. 1167 (1887)) are empowered and responsible for protecting a service member’s constitutional rights, including due process. Schlesinger v. Councilman, 420 U.S. 738, 757-60, 95 S.Ct. 1300, 1312-14, 43 L.Ed.2d 591 (1975); Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508 (1953) (plurality opinion). This is basic military law.

A convening authority and his staff judge advocate in their prosecutorial roles in the court-martial system act on behalf of our federal government. As such, they clearly have the responsibility to comply with the Constitution and the Uniform Code of Military Justice in performing these functions. Middendorf v. Henry, supra; Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). Accordingly, as broad as their discretion may be in these command matters, it cannot be considered plenary or unrestricted. Cf. Dynes v. Hoover, 61 U.S. (20 Howard) 65, 15 L.Ed. 838 (1858); Winthrop, Military Law and Precedents 447 (2d ed., 1920 Reprint). In the court-martial system, the Constitution and the Code are ultimately in command. This is basic military justice.

I

The facts as found by the trial judge and his rulings as a matter of law in this case are reminiscent of the situation presented in United States v. Milburn, 8 M.J. 110, 114 (C.M.A.1979). There a majority of this Court stated:

It is clear from his ruling that he concluded that the appellant as a witness at the earlier court-martial had been unfairly treated. Yet, he failed to act to protect the appellant from the perpetuation of this unfairness because of his perception of an apparent conflict between the previously cited Manual provisions. Such motivated inactivity drastically undermines his authority and responsibility as a military judge to ensure a military accused a fair court-martial, and cannot be condoned.

So too in the present case, the trial judge found that petitioner was treated unfairly in the manner in which he was brought to court-martial by military authorities. Likewise, he refused to act to remedy this wrong because of his reliance on a Manual provision, this time paragraph 68h, Manual, supra.

This is not military justice as authorized by the Constitution and established by the Uniform Code of Military Justice. Para. 68 h, Manual, supra, does not in any way obviate the responsibility of the trial judge to afford a military accused due process of law. See Article 39(a), UCMJ, 10 U.S.C. § 839(a); para. 39h, Manual, supra. Irrespective of the legal effect of this Manual provision on an agreement not to prosecute, it was clearly not intended by the President as a panacea for prosecutorial misconduct by a staff judge advocate acting under apparent authority of a convening authority. See generally United States v. Hardin, 7 M.J. 399 (C.M.A.1979). Moreover, this Manual provision does not create a shield for a convening authority which permits him to ignore his responsibilities under Article 6(b), UCMJ, 10 U.S.C. § 806(b). Such technical preoccupation with this provision of the Manual for Courts-Martial obfuscates the express dictates of Congress and the general intentions of the President as Commander in Chief that the service member be afforded due process of law in the military justice system.⁹

II

Limiting ourselves to the findings of fact by the trial judge, we can assess the merits of petitioner’s claim that his command’s staff judge advocate denied him due process of law. See Article 67(d), UCMJ, 10 U.S.C. § 867(d).

The Staff Judge Advocate of the Strategic Air Command is a senior officer in the Air Force and chief legal counsel for the Commander in Chief of the Strategic Air Command. As command staff judge advocate, he was responsible for providing this general court-martial convening authority with competent and effective legal advice in all matters relating to military justice. See Article 6(b).¹⁰ In view of the history of justice in the military,¹¹ such legal advice not only benefits the convening authority, but the military accused as well. See United States v. DeAngelis, 3 U.S.C.M.A. 298, 305, 12 C.M.R. 54, 61 (1953). Moreover, as an attorney, his performance in the execution of this codal responsibility must be guided by those standards of professional conduct applicable to the particular command function he is ordered to execute. See generally United States v. Hardin, supra; paras. 1-10, 1-11, 2-8, 3-4c of the Military Justice Guide, AFM 111-1 (2 July 1973).

In view of the findings of the trial judge, it is uncontroverted that the staff judge advocate was the “legal spokesman” for the command in the investigation of petitioner.¹² Not only did the commander rely on his staff judge advocate for all legal action in connection with this case but the agents of the Office of Special Investigations (OSI), petitioner and later his counsel did so as well. In view of Article 6(b) and paragraph 35b, Manual, supra, this reliance was reasonable and proper for all the parties to the investigation.

The trial judge also found as a matter of fact that, consistent with the SAC commander’s order of May 5, 1981, the staff judge advocate intended to conduct this investigation “in a manner consistent with potential prosecution,” but “damage assessment was the immediate priority.”¹³ Problems arose in this case because all of the parties justifiably relied on the staff judge advocate to lawfully coordinate these two distinct aspects of the investigation.

The first coordination problem occurred when the staff judge advocate “reluctantly agreed”¹⁴ to approve the interrogation of petitioner without advising him of his rights under Article 31, UCMJ, 10 U.S.C. § 831. This occurred on May 5,1981, at the request of the OSI officials prior to petitioner’s making any statements concerning his involvement in the suspected offenses. A misunderstanding developed between OSI agents and the staff judge advocate over the import of such procedure on the future prosecution of petitioner by the command. The trial judge found that these agents, during the subsequent interrogation, gave “assurances” to petitioner “regarding no prosecution.” He also found that neither the staff judge advocate, the commander nor any other official of the command had indicated that the command still did not wish to prosecute petitioner. Accordingly, he found the assurances of the OSI agents “were not authorized.”¹⁵

The question unanswered by the trial judge is whose responsibility was it to insure this investigation would be conducted in a fair and orderly fashion in accordance with command’s prosecutorial interests ? As a matter of fact, the trial judge earlier found that the staff judge advocate was “a main point of contact between the”¹⁶ command and the OSI in this investigation. As a matter of law, the Supreme Court has said, with respect to orderly prosecutorial procedures:

The staff lawyers in a prosecutor’s office have the burden of “letting the left hand know what the right hand is doing” or has done.

Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). The staff judge advocate clearly failed at this point to provide for the fair and orderly prosecution of petitioner. The largely exculpatory statement of May 7, 1981, was induced by this government confusion.

The second “misunderstanding” in this case between the staff judge advocate and the OSI agents occurred on May 8,1981. It concerned “an understanding” between this staff judge advocate and the OSI legal adviser “that if . .. [petitioner] would submit to and pass a polygraph, he would be favorably recommended by SAC for an honorable discharge.” This understanding was in response to a seventeen-page statement made by petitioner on May 7, 1981, and a three-page document executed on the same day in which petitioner stated the conditions under which he would submit to such an examination. Both Headquarters OSI and Head.quarters SAC had copies of these statements.

The trial judge found that the staff judge advocate believed that the OSI “polygraph examination [would be] limited to the validation of” petitioner’s largely exculpatory statement of May 7. The trial judge also found that the OSI personnel believed “that the proposed polygraph examination related to any and all future disclosures.”¹⁷ The OSI position was adopted by the agents in the field. Petitioner was ultimately told that SAC would still “permit a polygraph examination after full disclosure and if ... [he] passed the test, he would be permitted to resign.” ¹⁸

Petitioner did not accept this proposed agreement. The trial judge’s findings, however, reenforce our earlier conclusion that the staff judge advocate had not taken adequate steps to protect the legitimate prosecutorial interest of his command.

The third misunderstanding occurred on May 9,1981. The staff judge advocate was informed of petitioner’s refusal to take the polygraph examination. Petitioner was then advised of his rights under Article 31 and he asserted his right to counsel. Captain Francis W. Pedrotty, III, was detailed as his military defense counsel. The OSI agent informed Captain Pedrotty “that his client had full immunity from prosecution if he would make full disclosures regarding his involvement with Soviet representatives” and he passed “a polygraph examination.” ¹⁹

Captain Pedrotty insisted that “the agreement [be] in writing.”²⁰ The staff judge advocate was contacted by telephone. The trial judge found that during this telephone conversation on May 9,1981, “General Teagarden, regardless of what he may have intended, did communicate to Captain Pedrotty and Lt. Colonel Hoffman, that if the accused made a full disclosure, took and passed a polygraph, he would be discharged and there would be no prosecution.” He also found “that ... General Teagarden declined to authorize a written, signed agreement.”²¹

Regardless of the reasons posited by the trial judge for the staff judge advocate’s conduct, it clearly was not in accordance with accepted standards of performance of the prosecutorial function. The staff judge advocate’s offer must be viewed in light of the trial judge’s finding that “General Ellis never authorized any agreement except that which pertained to the May 7 statement.” ²² Section 4.1(c) of ABA Standards, The Prosecution Function (1971), states:

It is unprofessional conduct for a prosecutor knowingly to make false statements or representations in the course of plea discussions with defense counsel or the accused.

The fact that the staff judge advocate had no reason to believe disclosures other than those contained in the May 7 statement would be forthcoming is no reason for him to make promises to the petitioner not authorized by the commanding general. Moreover, even if his conduct is not characterized as deliberate deception, he still had the duty to act with due care in these negotiations. Section 4.3(b) of the ABA Standards, supra, states:

A prosecutor should avoid implying a greater power to influence the disposition of a case than he possesses.

The staff judge advocate had both the means and the responsibility to directly communicate with the SAC commander. See Article 6(b). His failure to do so served neither the convening authority’s nor petitioner’s legitimate interests in the orderly prosecution of this case.

The final aspect of the staff judge advocate’s conduct in this case, which must be assessed in due-process terms, entails his failure to act after the evening of May 9, 1981. The trial judge found as a fact that petitioner, in reliance on the staff judge advocate’s earlier communications to his counsel, “began to make disclosures distinct from and beyond those previously made.” ²³ These disclosures were communicated to command headquarters. A damage assessment team was sent by SAC to Langley Air Force Base to assist in the interrogation of petitioner. The staff judge advocate assisted in making arrangements for this team and was informed that petitioner had not been advised of his rights under Article 31.

A senior judge advocate for a major command should know that a serious problem existed if the commander intended to prosecute petitioner on the basis of these additional disclosures. See Article 31(d). Moreover, in view of his past involvement in the case and his personal belief as to the scope of the agreement, questions should arise in his mind as to the reason petitioner, on advice of counsel, gratuitously made these additional disclosures and cooperated with the OSI investigators. No action was taken at this time by him to assure his command could still lawfully prosecute petitioner.

Further notice was given to the staff judge advocate, as the legal representative of the command, that the investigation of petitioner was not being conducted in accordance with the orders of his commander. The trial judge found that “a progress report” message prepared by the OSI and sent to the SAC commander on May 11, 1981, “constitute[d] notice to .. . [the command] of the possible existence of an agreement beyond that relating to the 7 May statement of” petitioner.²⁴ On this same day or the next day, the SAC deputy staff judge advocate informed the acting SAC commander, in the commander’s absence, “that OSI was talking in terms of a grant of immunity to the accused.” On May 13, 1981, SAC, in response to a message prepared by the deputy staff judge advocate, received from OSI a detailed statement of the terms of agreement it believed existed with petitioner. Regarding any response of the staff judge advocate, the trial judge found: ²⁵

No reply was forthcoming from SAC to the accused, to his counsel, or to the AFOSI agents ... denying the existence of the agreement or contesting any of its terms.

Petitioner then executed a written statement concerning his additional disclosures on May 17, 1981. Still no word from the staff judge advocate. On May 19,1981, the staff judge advocate attended meetings in Washington with several senior officers in the Judge Advocate General’s office and the OSI where the prosecution of petitioner was discussed in terms of his agreement as detailed by the OSI. Moreover, during this time both “General Teagarden and General Ellis were aware that the .. . [petitioner] was to be polygraphed commencing 20 May, on the truthfulness of all disclosures made since 9 May.” ²⁶ Still no word or action by the staff judge advocate.

In assessing the conduct of the staff judge advocate, we note that the ABA Standards, The Prosecution Function § 4.3(c), states:

If the prosecutor finds he is unable to fulfill an understanding previously agreed upon in plea discussions, he should give notice promptly to the defendant and cooperate in securing leave of the court for the defendant to withdraw any plea and take other steps appropriate to restore the defendant to the position he was in before the understanding was reached or plea made.

A failure to meet this minimum standard of professional conduct is indisputable in this case.

This conduct by the staff judge advocate is not appropriate in the plea-bargaining process in the military justice system. United States v. Andreason, 23 U.S.C.M.A. 25, 28, 48 C.M.R. 399, 402 (1974); United States v. Cox, 22 U.S.C.M.A. 69, 71, 46 C.M.R. 69, 71 (1972); see generally United States v. Dawson, 10 M.J. 142 (C.M.A.1981) (Fletcher, J.). Here, the staff judge advocate, by his own words, created a reasonable expectation in petitioner that if he satisfactorily cooperated with the command in the matters concerning national security, there would be no court-martial prosecution by military authorities. See Santobello v. New York, supra. More importantly, with notice of possible confusion as to the terms of this understanding, he failed to act to clarify the situation. As a result, he repeatedly reenforced petitioner’s and the OSI agents’ view of the agreement and continued to accept the benefit of petitioner’s ongoing performance. Cf. United States v. Kazena, 11 M.J. 28 (C.M.A.1981). Such tactics were indeed successful in producing for the command a verified account of the compromised national security information. We believe, however, that although an accused may have to make many difficult decisions in the criminal justice system (Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)), he need not gamble on the integrity of prosecutorial authorities in the military justice system. United States v. Kazena, supra at 31; United States v. Hardin, supra. In view of this minimum standard for professional conduct,²⁷ the codal importance of a staff judge advocate in the military justice system, and the earlier pronouncements of this Court and others²⁸ concerning fairness in the plea-agreement area, we conclude that in this case there was a violation of due process of law.

Ill

The staff judge advocate of this command was not the only prosecutorial authority involved in the investigation of petitioner. See Article 6(b). Due process challenges were also made to the conduct of the SAC commander as the original convening authority in this case. The facts found by the trial judge also demonstrate with unmistakable clarity the unfairness of his conduct in bringing petitioner to court-martial.

The judge’s findings indicate that in the latter part of April 1981 the SAC commander was informed by the OSI of its “suspicions concerning” ²⁹ certain activities of petitioner. The SAC commander was clearly responsible for the security of defense information within his command and the negation of any damage caused by a breach of this security. As a response to this threat, he designated his staff judge advocate to represent the command in legal matters involved in the OSI investigation. After a later briefing by his staff judge advocate concerning petitioner on May 5, 1981, he ordered his lawyer to direct “the OSI to ‘pick him up immediately — we must find out what damage he has done to the country.’ ” Such conduct was consistent with his command responsibilities.

The SAC commander is also responsible for maintenance of law and order within his command and the effective enforcement of federal criminal law. See Relford v. Commandant, 401 U.S. 355, 367, 91 S.Ct. 649, 656, 28 L.Ed.2d 102 (1971). The military judge found that the details of his order as actually communicated to the OSI evidenced the state of mind of the command “that though damage assessment was the immediate priority, the investigation was to be conducted in a manner consistent with potential prosecution.”³⁰ In view of his broad responsibility and prosecutorial discretion, this concern was also legitimate. See generally Hodson, Military Justice: Abolish or Change ? Mil.L.Rev., Bicentennial Issue, 579, 591-97 (1975).

At this point, a serious problem confronted the commander in his dual role of commanding officer and general court-martial convening authority. What procedures of investigation could he employ which would resolve with certainty his concern for national security, yet, at the same time, permit him to successfully prosecute petitioner at a court-martial for any offenses he might have committed? Such a predicament is admittedly difficult. However, the Uniform Code of Military Justice provided this convening authority with the necessary legal guidance to resolve this dilemma. Article 6(b) states in part:

Convening authorities shall at all times communicate directly with their staff judge advocates or legal officers in matters relating to the administration of military justice.

As indicated earlier, this codal provision also protects the military accused from prosecutorial conduct by a convening authority which is not based on competent legal advice. See Article 34(a), UCMJ, 10 U.S.C. § 834(a); Hodson, supra. As a matter of law, Congress mandated the orderly procedures by which a commander might competently and successfully prosecute petitioner. See United States v. Hardin, supra; McMenamin, Plea Bargaining in the Military, 10 Am.Crim.L.Rev. 93, 99-102 (1971).

Turning to the facts in this case as found by the trial judge, it is necessary to determine whether petitioner was prosecuted in an orderly and legally fair manner as contemplated by the Uniform Code of Military Justice. See Santobello v. New York, supra, 404 U.S. at 261-63, 92 S.Ct. at 498. The trial judge placed great weight in his legal decision on the fact that at the critical points in the investigation, where prosecutorial decisions where made by the staff judge advocate and the OSI agents, the SAC commander remained silent as to his intentions. Moreover, such silence continued even though, on May 9, 1981, he knew there were additional disclosures after petitioner’s exculpatory statement of May 7, 1981;³¹ after he had notice on May 11, 1981, from the OSI progress report “of the possible existence of an agreement beyond that relating to the 7 May 1981 statement” ³²; and after he was fully briefed on May 15, 1981, by his deputy on the problem concerning the OSI grant of immunity to petitioner.³³

His only response was to direct his second-in-command to brief his staff judge advocate on the problem of the OSI grant of immunity to petitioner. A review of the legislative history of Article 6(b) and Article of War 47(a), its statutory predecessor,³⁴ reveals that this was the precise method of proceeding which Congress intended to stop. Congress instead mandated that the convening authority, at all times in matters of military justice, communicate directly with his staff judge advocate without intervention of other staff personnel.

As a result of the repeated failure of the commander to act during this period and the unrepudiated conduct of his legal representative, petitioner executed a written statement on May 17, 1981, as to his additional disclosures since May 9,1981. Notice was given to the SAC commander by May 19, 1981, that petitioner “was to be polygraphed” on his additional disclosures.³⁵ Still he did not act. Petitioner, in reliance on this continuing course of conduct by the convening authority, submitted to a polygraph examination between May 20 and 22, 1981. By noon on May 22, 1981, the results were known. It was the professional opinion of the Air Force examiners that petitioner had passed the examination.

According to the trial judge, it was sometime thereafter that the command announced to the parties to the investigation that it intended to prosecute petitioner. The first reason offered for such action was that petitioner “had not [satisfactorily] passed the polygraph examination,” in the opinion of the command.³⁶ Later, it was maintained that the agreement with petitioner never extended to additional disclosures outside the May 7 statement.³⁷

Such conduct by a commander-general court-martial convening authority was in violation of the orderly prosecutorial procedures prescribed in Article 6(b). See Santobello v. New York, supra. Rather than directly communicating with his staff judge advocate in this military justice matter, he chose to isolate himself from the continuing investigation of petitioner. This codal provision was not intended to functionally relieve the commander of his prosecutorial responsibilities. See United States v. Hardin, supra; United States v. DeAngelis, supra. Moreover, his earlier delegation of authority to his legal counsel could not conceivably justify his decision to stand silent in the face of repeated notice that his orders concerning the investigation were not being carried out. Article 6(b) cannot reasonably be read to permit such selective abdication of prosecutorial responsibility by the convening authority.

IV

The final question we must address in this case concerns the remedy to be afforded petitioner as a result of the due process violations in this case. As the Supreme Court pointed out in United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981), “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation [of the fifth amendment] may have been deliberate.” See Article 59(a), UCMJ, 10 U.S.C. § 859(a). Although we accept this statement as a general principle of law, it does not preclude the more drastic action in the present case.³⁸ 449 U.S. at 365 n. 2, 101 S.Ct. at 668 n. 2.

In any event, the usual approach adopted by the Supreme Court in fashioning a constitutional remedy is “to identify” the taint in the criminal proceeding and “neutralize” it “by tailoring relief appropriate in the circumstances to assure the defendant” due process of law “and a fair trial.” United States v. Morrison, supra at 365, 101 S.Ct. at 668. In other words, “[t]he remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.” Id. at 366, 101 S.Ct. at 669.

The trial judge opined that the detriment suffered by petitioner was the confession he made to the OSI agents as a result of the defective promises of immunity. He suggested if a timely motion to suppress were filed, the appropriate remedy in this case would be to suppress these statements and any evidence derived therefrom. The problem with this suggestion is that it ignores his earlier findings of fact that petitioner was not properly advised of his rights under Article 31(b) by the OSI agents prior to his original or additional disclosures. These statements were inadmissible for this reason without regard to the conduct of the convening authority and his staff judge advocate. Article 31(d), supra.

The question becomes what are the fruits of the prosecution’s transgressions in' the present case? First, the commander acquired the verified national security information which was compromised by petitioner. It would be absurd to suggest that this Court return these materials to petitioner, or that such action would be meaningful. Second, military authorities acquired a confession from petitioner as to his involvement in these offenses. As indicated above, suppression is not an appropriate remedy under the circumstances in this ease. The third fruit of the prosecution’s transgression, at least in the mind of the trial judge, was that military authorities retained the right to prosecute the petitioner. In our mind, this is also the continuing prejudice suffered by petitioner as a result of the actions of the convening authority and his staff judge advocate. Cf. United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966). Accordingly, we believe the appropriate remedy is to deny military authorities this right to prosecute petitioner by court-martial.³⁹

The extraordinary relief sought by petitioner is granted. The record shall be returned to the respondent military judge who is directed forthwith to dismiss the charges and specifications.

APPENDIX

UNITED STATES v 2LT CHRISTOPHER M. COOKE, FV225-84-8325 532d Strategic Missile Squadron (SAC) McConnell Air Force Base, Kansas

)

) MEMORANDUM OF RULING ON j DEFENSE MOTION TO BAR ) PROSECUTION: PROMISE OF ) IMMUNITY )

I.

This motion presents for resolution the issue of whether trial of this case is barred in consequence of a promise of immunity from prosecution made to the accused, 2Lt Christopher M. Cooke.

II.

Upon careful consideration of all the evidence bearing on the motion, together with the briefs and arguments of counsel, having seen and heard the witnesses, and mindful of the burden on the defense to support their position by a preponderance of the evidence, it is the decision of the court that the motion is denied.

III.

In connection with this disposition, the court finds as follows regarding the facts and law relevant to the motion:

1. General Richard H. Ellis, Commander in Chief of Strategic Air Command (CINCSAC) and the General Court-Martial Convening Authority, did not promise or grant accused immunity from prosecution at any time; nor did he authorize Brigadier General C. Claude Teagarden, his Staff Judge Advocate, or anyone else to make any such promise or grant in his behalf.

2. At no time did General Ellis, in his capacity as General Court-Martial Convening Authority, ratify any alleged promise of immunity or no prosecution offered accused by any person purporting to act pursuant to lawful authority.

a. As a matter of law, ratification of such an alleged promise of immunity or no prosecution must be done by one who has actual authority. In addition, such ratification must be done by affirmative action and may not be done by silence. Equitable immunity or estoppel may not be granted in the absence of actual authority.

3. Beginning on 27 April 1981, Brigadier General Teagarden acted as a main point of contact between the Air Force Office of Special Investigations (OSI) and CINCSAC involving the investigation of Lieutenant Cooke. General Teagarden had actual and apparent authority to act as CINCSAC’s legal spokesman on the Cooke investigation, and General Ellis, then CINCSAC, and Májor General Pringle, Strategic Air Command (SAC) Chief of Staff, expressly relied upon General Teagarden for all legal action in connection with this case.

4. In the last days of April 1981, SAC was informed by the OSI of suspicions concerning the accused. Despite the OSI recommendation that the accused be prohibited from going on a scheduled leave on 2 May 1981, SAC decided that the accused should in fact be permitted to go on leave and kept under surveillance.

5. After General Teagarden briefed the CINCSAC about the accused on 5 May 1981, General Ellis ordered General Teagarden to inform the OSI to “pick him up immediately — we must find out what damage he has done to the country.” That order as communicated to OSI through Generals Pringle and Teagarden, was: Pick up accused off the street immediately, advise him of his rights and question him, reinterview the cab driver and obtain a written statement, and interview the uniformed policemen at the Soviet Embassy and obtain written statements. The order evidenced the state of mind of Generals Ellis, Pringle, and Tea-garden that though damage assessment was the immediate priority, the investigation was to be conducted in a manner consistent with potential prosecution.

6. On 5 May 1981, pursuant to orders from SAC, the accused was taken into custody by OSI special agents as a result of suspicions that he had engaged in unauthorized visits to the Embassy of the Soviet Union in Washington, D. C. He was taken to Langley Air Force Base, Virginia, for interrogation.

7. Later that same day, General Teagarden was contacted by Major Snyder, OSI Legal Advisor, and by Colonel Grosvenor H. LeTarte, Director of the USAF Judiciary, at the behest of OSI Headquarters. They advised the General that if SAC’s primary purpose was to obtain damage assessment, the recommended procedure was to interview the accused without an advisement of rights pursuant to Article 31, UCMJ. Colonel LeTarte told General Teagarden that an OSI regulation required approval of the Staff Judge Advocate before OSI could proceed with a non-advisement of rights interview. General Teagarden reluctantly agreed that the interview of the accused could be conducted without an advisement of his Article 31 rights. At no time did General Teagarden or any other SAC official indicate in any manner that SAC did not wish to prosecute the accused or that SAC’s only interest was in ascertaining what the accused had done. Aside from the non-advisement of rights, OSI did not request approval from General Teagarden to conduct the investigation in a manner different from SAC’s initial direction.

8. Thereafter, but still on 5 May 1981, Colonel LeTarte informed Mr. Charles Torpy, the then Acting Chief of the Directorate of Counterintelligence, Headquarters AFO-SI, that General Teagarden concurred in the OSI request for a non-advisement interview of the accused on the basis of SAC’s desire to obtain a damage assessment. Colonel LeTarte did not tell Mr. Torpy that SAC was not interested in prosecuting the accused. Mr. Torpy thereafter, without further coordination with SAC, advised Lt Colonel Jerome E. Hoffman telephonically that SAC was not interested in prosecuting the accused and to proceed with a non-advisement interrogation.

9. Pursuant to the foregoing understanding of SAC’s desire to obtain damage limiting information, the OSI investigators interrogated the accused for approximately four days from 5 through 8 May 1981, without counsel and without an Article 31 advisement. Lt Colonel Hoffman and other special agents interrogating the accused repeatedly informed him the reason for not advising him of his Article 31 rights was because the purpose of the investigation was not prosecution but rather, to ascertain possible damage to SAC’s operational capability. The assurances given to the accused regarding no prosecution were not authorized by or known to General Ellis or any other official of SAC.

10. On 7 May 1981, a seventeen-page statement was reduced to writing and signed by the accused (See Defense Exhibit C). The statement was to a large extent exculpatory in nature. In that connection, it is noted that between 5 and 8 May, Lt Colonel Hoffman and other agents involved in the questioning of the accused became increasingly doubtful that the accused’s original story and his seventeen-page 7 May statement revealed the total extent of his involvement with the Soviets. Mr. Hoffman repeatedly apprised [¶] OSI of his growing apprehension, however, such apprehension was never communicated to SAC officials.

11. Although at the commencement of his interrogation, the accused had expressed a willingness to submit to a polygraph examination, he evidenced an increasing reluctance to do so when the issue became the verification of his 7 May statement. Eventually the accused prepared a three-page document on 7 May relating his concerns about taking a polygraph examination and setting forth conditions under which he would approve such an examination. (See Defense Exhibit D.) One of the accused’s major concerns was that any misreading of the polygraph would be used against him by SAC. He therefore requested discharge from the Air Force before being examined. That document and the seventeen-page, 7 May statement were transmitted to OSI Headquarters and, on 8 May 1981, to SAC Headquarters at Offutt Air Force Base, Nebraska.

12. After having had an opportunity to review Defense Exhibits C and D, General Teagarden, at the request of Colonel Beyea, OSI Commander, had a telephone conversation with Colonel Beyea, Major Snyder, and Mr. Torpy at OSI Headquarters. Colonel Gilbertson was on the line with General Teagarden at the General’s residence. This conversation focused on the concerns expressed by the accused regarding his submitting to a polygraph examination while under SAC’s control and how these concerns could be alleviated. The discussion was primarily between General Teagarden and Major Snyder and resulted in an understanding that if the accused would submit to and pass a polygraph, he would be favorably recommended by SAC for an honorable discharge. It is evident that this conversation resulted in a misunderstanding between SAC and OSI officials. General Tea-garden’s understanding was that OSI intended to conduct a polygraph examination limited to the validation of the accused’s seventeen-page 7 May statement detailing the extent of his involvement with the Soviets. Conversely, Major Snyder and other OSI personnel were under the impression that the proposed polygraph examination related to any and all future disclosures the accused might make. During the conversation nothing was said by any of the OSI officials that should reasonably have alerted General Teagarden to any real possibility that the accused’s 7 May statement was anything less than a definitive account of his involvement with the Soviets. In fact, Mr. Torpy who described himself as a rather passive party to the conversation and had no clear recollection of the specifics, did express the view, in effect, that what we have here may be just what it appears to be, a young, naive student following up his academic pursuits; that spies just don’t walk in the front door of the Soviet Embassy-

13. A short time after the telephone conversation, Major Snyder believing he had the basis for an agreement, drafted a handwritten outline of the conditions discussed by General Teagarden on the telephone. The text of this outline was then transmitted telephonically to Lt Colonel Hoffman who, in turn, typed it out in verbatim fashion (with the exception of paragraph 4c) and labelled the document “SAC Position.” (See Defense Exhibit A.)

14. During the morning hours of 9 May 1981, Lt Colonel Hoffman began to explain to the accused his understanding of SAC’s Position. Prosecution Exhibits 5 and 6 are verbatim transcripts of the interview. Hoffman’s explanation of the SAC position during the initial phase of the interview conforms to Defense Exhibit A. Among other things, Lt Colonel Hoffman told the accused, “If you have in your mind doubts about what you’ve told us as far as the accuracy and the truthfulness, stay the hell off the machine because it’s not going to help you any. The option of being deception indicated and the option of not taking are the same. If you’re not being truthful, if you haven’t been accurate, tell us right now, you know, ‘I don’t want to take the machine,’ you know, to be examined, the appearance that it will be, because you are just going to bugger things up even more.” For the first forty minutes of the interview, the focus was on the accused taking a polygraph examination on the 7 May statement. Finally, Hoffman stated, “Now we need a decision.” After a lengthy pause, SA Hoffman indicated to the accused that Option 3 on Defense Exhibit A applied even if the accused had been deeply involved in espionage for many years and had been guilty of extensive compromises, provided he made full disclosure and then submitted to and passed a polygraph examination. He said “they,” meaning SAC, were still willing to permit a polygraph examination after full disclosure and if the accused passed the test, he would be permitted to resign. The accused’s response to being told that this new explanation was what was written on the exhibit was, “I’ve got what’s written down here. What you just said is something very___incredible. Not that I care about that at all, but if it’s so clear, why didn’t I — why didn’t I surmise that for myself from reading this?” The explanation by Lt Colonel Hoffman was a significant departure from his original explanation of the meaning of SAC’s position and was recognized by the accused as being quite different.

15. Despite the foregoing, the accused remained reluctant to submit to a polygraph examination. This reluctance was communicated to General Teagarden by OSI Headquarters. Ultimately, the accused refused to take the polygraph and was accordingly advised of his rights under Article 31. Pursuant to the accused’s assertion of his right to counsel, Captain Francis W. Pedrotty, III, was detailed as his military defense counsel. Captain Pedrotty was briefed by Lt Colonel Hoffman that his client had full immunity from prosecution if he would make full disclosures regarding his involvement with Soviet representatives, provided such information was verified by the accused passing a polygraph examination. Lt Colonel Hoffman also advised Captain Pedrotty that this agreement was authorized by SAC, and if all conditions were met, the accused would be administratively separated from the Air Force with an honorable discharge. Insofar as these statements gave assurances regarding future disclosures to be made by the accused, these statements regarding no prosecution went beyond any authorization by SAC officials.

16. Captain Pedrotty, after consulting with the accused, determined there was a lot more involved than what was contained in the 7 May statement. He informed the special agents that he and his client wanted the agreement in writing. Lt Colonel Hoffman advised that authority for that would have to come from SAC. Thereafter, on the afternoon of 9 May 1981, a telephone call was placed to General Teagarden with both Captain Pedrotty and Lt Colonel Hoffman on separate extensions of the same phone line. In consequence of that telephone conversation and a subsequent one between General Teagarden and Lt Colonel Hoffman, a short time later, Captain Pedrotty and Lt Colonel Hoffman believed that General Teagarden, with the asserted explicit backing of CINCSAC, authorized immunity for the accused if he would make full disclosure regarding his involvement with the Soviets and successfully complete a polygraph examination. As a result of these same conversations, General Teagarden believed the accused had agreed to take a polygraph examination as to his 7 May statement only. He further understood that if the accused had been truthful and fully forthcoming in that statement, and if the accuracy of that statement were verified by the accused passing the polygraph examination, SAC would allow the accused to return to Richmond, Virginia, in leave status and thereafter be separated administratively from the Air Force with a recommendation for an honorable discharge.

17. The evidence is in sharp dispute concerning what was actually communicated by General Teagarden to Captain Pedrotty, and thus to the accused, during the 9 May telephone conversations. In their testimony, the parties were adamant that their respective accounts actually reflected the parameters of the agreement. However, having considered the testimony and the factors bearing thereon, including Lt Colonel Hoffman’s memorandum on the reverse side of Defense Exhibit A, I find as fact that General Teagarden, regardless of what he may have intended, did communicate to Captain Pedrotty and Lt Colonel Hoffman, that if the accused made a full disclosure, took and passed a polygraph, he would be discharged and there would be no prosecution. I further find that during the conversations General Teagarden declined to authorize a written, signed agreement and displayed increasing impatience to the callers. Clearly the accused relied on such promise to his detriment.

18. A key to why General Teagarden would make such a promise may be discerned in previous findings. As indicated, what was known by the parties to the telephone calls was decidedly different. Thus, except for a slight personal uneasiness he felt concerning the truth of the 7 May statement, General Teagarden had no reason to believe on the basis of anything communicated by the OSI that the statement was not a definitive account of the accused’s involvement with the Soviets. By contrast, Lt Colonel Hoffman and Captain Pedrotty both believed there was a substantial probability that the accused had been less than candid in his 7 May statement and that disclosures of serious espionage activity would be forthcoming. On the basis of this disparity, and in light of General Tea-garden’s conduct before and after the telephone conversations, I do not believe he meant the agreement to be so all encompassing. Nevertheless, his words conveyed that message.

a. Of greater import, General Ellis never authorized any agreement except that which pertained to the 7 May statement. Nor did he at any time ratify the agreement not to prosecute the accused believed he had as a result of the 9 May conversations between his counsel and General Tea-garden.

19. Early on 9 May 1981, before any of the telephone discussions between General Teagarden, Captain Pedrotty, and Lt Colonel Hoffman, General Teagarden informed General James Taylor, Deputy, TJAG, that “We may have an officer involved in an espionage case.” That statement, either in and of itself or whén considered with all the other evidence in the case, is no indication of General Teagarden’s disbelief of the 7 May statement of the accused.

20. As a result of the agreement he believed he had with CINCSAC, in consequence of the 9 May telephone conversations between General Teagarden, Captain Pedrotty, and Lt Colonel Hoffman, on the evening of 9 May 1981, the accused began to make disclosures, distinct from and beyond those previously made. These disclosures were made pursuant to an express revocation of the previous advisement of rights. The accused’s disclosures were communicated to AFOSI Headquarters and to SAC. A SAC damage assessment team was formed and subsequently sent to Langley Air Force Base to assist in the interrogation of the accused.

21. On the morning of 10 May 1981, General Teagarden had a telephone conversation with Colonel Beyea in which arrangements for the SAC damage assessment team were discussed. During this conversation General Teagarden expressed the hope that the accused had been advised of his Article 31 rights before the statement was made and was informed that he had not been.

22. Also on the morning of 10 May 1981, General Ellis, by message, which was reviewed by Generals Pringle and Teagarden, notified the Chairman of the Joint Chiefs of Staff and the Air Force Chief of Staff, of his intention to prosecute the accused to the fullest extent of the law. A copy of the message was sent to Lt General Lloyd Leavitt, the then Vice CINCSAC. Prior to going TDY to WestPac, General Ellis advised General Leavitt to keep him informed of developments in the Cooke case. It is not implicit in the message that General Ellis understood there was an agreement that the accused would take a polygraph examination on the truthfulness of all disclosures. General Ellis’ message does acknowledge his understanding of the inability to use the accused’s confessions in contemplated prosecution.

23. On 11 May 1981, a progress report was transmitted from AFOSI Headquarters to AFOSI District 13 requesting through transmittal to CINCSAC at TDY site, which message states in pertinent part that the interrogation of the accused is continuing “under agreed upon conditions.” (See Defense Exhibit 0.) General Ellis admitted an awareness of at least part of the information contained in that message. This message did constitute notice to SAC of the possible existence of an agreement beyond that relating to the 7 May statement of the accused.

24. On 11 or 12 May 1981, General Leavitt was informed by Colonel Ratcliff, General Teagarden’s Deputy SJA, that OSI was talking in terms of a grant of immunity to the accused. General Leavitt instructed Colonel Ratcliff to find out from AFOSI the events of 9 May relating to the immunity. A message was sent by Colonel Ratcliff to AFOSI Headquarters requesting said information which resulted in messages being sent to Special Agent Hoffman at Langley Air Force Base. (See Defense Exhibits B and B-l.) In response thereto, Special Agent Hoffman prepared a message (see Defense Exhibit B-2) which was received and reviewed by Colonel Ratcliff and General Leavitt. That 13 May message from Special Agent Hoffman sets out in precise detail, the terms of the agreement for no prosecution the OSI believed existed between the accused and SAC. No reply was forthcoming from SAC to the accused, to his counsel, or to the AFOSI agents conducting this investigation, denying the existence of the agreement or contesting any of its terms. However, I do not find this to be evidence of CINCSAC’s assent to or ratification of the agreement.

25. On 11 through 17 May 1981, efforts were commenced in the office of TJAG, the Justice Department and the Joint Chiefs of Staff to determine whether there was a means to prosecute the accused despite the existence of an agreement not to prosecute.

26. On 13 May 1981, Mr. Torpy, Major Robert Mounts, then a member of TJAG’s staff, and Colonel Allan C. Smith, Headquarters Air Force Trial Judiciary, Chief Judge, had a meeting with Mr. John L. Martin, Chief of the Internal Security Division of the Justice Department, his deputy and several FBI agents. Judge Smith and Major Mounts had been assigned by TJAG the task of examining possible ways to prosecute. Mr. Martin was informed that the AFOSI and TJAG were of the opinion that the case was non-prosecutable unless the accused ceased to cooperate or failed to pass the polygraph examination as evidenced by the 19 May Talking Paper (Defense Exhibit E). The Justice Department shared this view.

27. On the evening of 15 May, CINCSAC. and his entourage returned from WestPac. Moments after his arrival, he was informed by General Leavitt of a problem concerning the agreement with the accused during which conversation General Leavitt may have said the “OSI gave immunity” to the accused. CINCSAC indicated no reaction of great concern. He asked General Leavitt to advise General Teagarden of the problem.

28. On 17 May 1981, the accused signed a written statement containing all of his disclosures up to the 17th of May concerning all of his contacts with and disclosures to the Soviets.

29. On 18 May 1981, there was a meeting at the office of Lt General Leaf, Air Force IG, attended by Generals Leaf and Thomas Bruton, Air Force TJAG, Colonel Beyea, Mr. Torpy, Major Mounts and other representatives of the AFOSI, the IG’s office, Joint Chiefs of Staff and Secretary of the Air Force Personnel Council, during which the preparation of a talking paper was discussed. The talking paper was to include a discussion of legal options should the accused breach his agreement, as well as various personnel options.

30. On 19 May 1981, the talking paper having been prepared, an informal meeting took place at Major General Bruton’s office and was attended by Generals Bruton, Taylor, and Teagarden, Colonel Beyea, Mr. Torpy, and Major Mounts. The talking paper unequivocally details the agreement not to prosecute as well as the opinion of all interested parties that the agreement should be honored. At no time during the meeting did General Teagarden claim that there was no agreement in existence, or that any agreement had been abrogated. Even more specifically, General Teagarden did not claim at this meeting that the only agreement was one predicated on the truthfulness of the accused’s 7 May statement.

31. Subsequent meetings and conversations took place between General Teagarden, Mr. Torpy, and Generals Bruton and Taylor. Again, General Teagarden did not mention to anyone that the agreement of no prosecution was contingent on the truthfulness of the 7 May statement. Further, General Teagarden and General Ellis were aware that the accused was to be polygraphed commencing 20 May on the truthfulness of all disclosures made since 9 May.

32. On 20 through 22 May 1981, a polygraph examination of the accused was conducted by Air Force polygraph examiners James Suter and Gerald Craig. At mid-day on 22 May, said examiners reached the conclusion that the accused had made full disclosure and had verified the truthfulness of those disclosures by polygraph examination.

33. During the week of 22 May 1981, General Teagarden informed General Taylor that SAC was considering prosecuting the accused because he had not passed the polygraph examination. The OSI and Captain Pedrotty were also informed of this position. The accused was then ordered returned to McConnell Air Force Base for psychiatric evaluation despite the fact that arrangements were being made by the AFOSI for the release of the accused for continued leave in the Richmond area pursuant to the terms of the agreement.

34. On 22 May 1981, a meeting attended by Generals Bruton and Taylor and Mr. William Howard Taft, IV, DOD General Counsel, was held. During that meeting, Mr. Taft directed, on behalf of the Secretary of Defense, that, among other things, he be informed of the reasons, if any, for the abrogation of the agreement.

35. On 25 May 1981, a meeting was held at SAC Headquarters and was attended by Generals Ellis, Leavitt, Pringle and Teagarden. A response was prepared to Mr. Taft’s directive. No mention was made in that response of the abrogation of an agreement based on the truthfulness of the accused’s 7 May statement, or even the existence of such an agreement. A message was sent by CINCSAC to the Chairman of the Joint Chiefs of Staff, and Air Force Chief of Staff. (See Defense Exhibit G.) By approving paragraph 4 of that message, General Ellis did not intend to adopt or ratify any agreement with the accused. I believe his testimony when he stated he understood that “someone” obviously thought there was an agreement, and by paragraph 4 he intended only to assert that “regardless of whose agreement it was, it was invalid.”

36. On 28 May 1981, Captain Pedrotty and General Teagarden had a telephone conversation wherein General Teagarden again did not inform the accused’s counsel that SAC claimed the agreement with the accused was based on the 7 May statement.

37. On 7 June 1981, General Teagarden had a telephone conversation with Mr. F. Lee Bailey, civilian counsel for the accused. During that conversation General Teagarden did not mention SAC’s contention that the agreement was predicated on the 7 May statement.

38. On 8 June 1981, General Teagarden, in a telephone conversation with General Bruton, later reported to General Taylor, first mentioned to some individual outside of his own Command, that the agreement of no prosecution which the accused was informed he had, was never entered into by SAC.

IV.

Although not technically necessary to resolution of the issue raised by this motion, I nevertheless find it appropriate to add that the accused is not without a remedy to correct the detriment he has suffered in consequence of unauthorized promises of immunity which motivated his confession. In that regard, it is clear to the court that the statement the accused made and which was executed on 17 May 1981 was involuntary, in that it was obtained through the use of unlawful inducement; that is to say, an unauthorized, defective promise of immunity. Therefore, in the face of a timely motion to suppress, such statement may not be received as evidence against the accused during this trial. In addition, such evidence as is challenged as having been derived from such statement, so called derivative evidence, will suffer a similar fate, unless the government can demonstrate that said evidence was not obtained by use of the statement.

22 September 1981 (Date)

/s/David Orser DAVID ORSER, Lt Colonel, USAF Military Judge

1 . The petitioner is charged with 10 specifications of violating AFR 205-57 by failing to report visits to and contacts with the Soviet Embassy, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, and 3 specifications of transferring information contrary to 18 U.S.C. § 793(d), in violation of Article 134, UCMJ, 10 U.S.C. § 934.

2 . These findings of fact and law by the military judge are attached to this decision as an appendix. All references in these footnotes are to Part III of this appendix unless otherwise indicated.

3 . Finding 1. The trial judge in Finding 18a states somewhat inconsistently:

a. Of greater import, General Ellis never authorized any agreement except that which pertained to the May 7 statement.

4 . Finding 1.

5 . Finding 2.

6 . Finding 2a.

7 . We note that the trial judge has not ruled as to the exclusion of any evidence; he awaits “a timely motion to suppress.” Findings, Part IV.

8 . The original disclosures by petitioner were also made after the government investigators intentionally refused to advise him of his rights under Article 31, UCMJ, 10 U.S.C. § 831. Finding 9. The additional disclosures were made only after “an express revocation of the” earlier advisement of rights given by the agents. Findings 20 and 21.

9 . The decisions of this Court in United States v. Joseph, 11 M.J. 333 (C.M.A.1981); United States v. Caliendo, 13 U.S.C.M.A. 405, 32 C.M.R. 405 (1962); United States v. Thompson, 11 U.S.C.M.A. 252, 29 C.M.R. 68 (1960), and United States v. Werthman, 5 U.S.C.M.A. 440, 18 C.M.R. 64 (1955), are not controlling in the present case. These cases did not address prosecutorial conduct by a general court-martial convening authority and his staff judge advocate nor their responsibilities under Article 6(b), UCMJ, 10 U.S.C. § 806(b).

10 . See Hearings Before a Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., on H.R.2498 (1949), reprinted in Index and Legislative History, Uniform Code of Military Justice pp. 898-901.

See also Subcommittee Hearing on H.R.2575, to Amend the Articles of War to Improve the Administration of Military Justice, to Provide for More Effective Appellate Review, to Insure the Equalization of Sentences and For Other Purposes, 80th Cong., 1st Sess., p. 2066 (April 21, 1947).

11 . See generally Brown, Crowder-Anseli Dispute: The Emergence of General Samuel T. Anseli, 35 Mil.L.Rev. 1 (1967); Morgan, The Background of the Uniform Code of Military Justice, 28 Mil.L.Rev. 17 (1965).

12 . Finding 3.

13 . Finding 5.

14 . Finding 7.

15 . Finding 9.

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17 . Finding 12.

18 . Finding 14.

19 . Finding 15.

20 . Finding 16.

21 . Finding 17.

22 . Finding 18a.

23 . Finding 20.

24 . Finding 23.

25 . Finding 24.

26 . Finding 31.

27 . See ABA Standards, The Prosecutorial Function § 1.1(e) (Supplement) (1971). See also Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).

28 . We have reviewed the federal cases cited by petitioner and the Government concerning due process requirements for federal prosecuting attorneys. E.g., Government of the Virgin Islands v. Scotland, 614 F.2d 360 (3rd Cir. 1980); Cooper v. United States, 594 F.2d 12 (4th Cir. 1979); Palermo v. Warden, Green Haven State Prison, 545 F.2d 286, 294-96 (2nd Cir. 1976), cert. denied, 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (1977); United States v. Carter, 454 F.2d 426, 427-28 (4th Cir. 1972), cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974). See also Rowe v. Griffin, 497 F.Supp. 610, 617 (M.D.Ala.1980); United States v. Paiva, 294 F.Supp. 742, 747 (D.D.C.1969). We fail to find any support for such prosecutorial conduct in those cases.

29 . Finding 4.

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33 . Finding 27.

34 . See n. 10

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36 . Finding 33.

37 . Finding 38.

38 . We agree wholeheartedly with the Supreme Court that our society has a strong interest in the effective administration of criminal law. Prosecution of the petitioner under the circumstances of the present case, though serving this interest, would clearly discourage cooperation by suspected spies or traitors in future damage-assessment investigations. See Cooke v. Ellis, 12 M.J. 17, 18 (C.M.A.1981) (Everett, C. J., dissenting).

39 . This Court has no jurisdiction over the administrative discharge system of the armed services. Moreover, in view of the basis of our decision, we offer no comments as to the ability of federal civilian authorities to try petitioner in federal district court.