Opinion
COOK, Senior Judge:
Despite his pleas, a general court-martial convicted the accused of conspiracy to violate Article 1151, U.S. Navy Regulations, 1973, in violation of Article 81, Uniform Code of Military Justice, 10 U.S.C. § 881. The approved sentence extends to a bad-conduct discharge, confinement at hard labor for 1 year, forfeiture of $299.00 pay per month for 12 months, and reduction to pay grade E-l. The United States Navy-Marine Corps Court of Military Review affirmed the findings and sentence after a sua sponte reconsideration of an earlier decision. We granted accused’s petition for review on issues challenging the voluntariness of a pretrial statement, lack of speedy trial, and the failure to give credit for alleged illegal pretrial confinement.1 Finding no error prejudicial to the substantial rights of the accused, we affirm.2
This case arose in Iwakuni, Japan. On November 29, 1979, Aviation Storekeeper Third Class (AK-3) J.R. White was apprehended for possessing illicit drugs and made a statement that he had purchased [222]*222the drugs from the accused on the previous day. The Government of Japan was notified on November 30 of White’s apprehension and his statement implicating the accused, and, as was the customary practice, assumed jurisdiction over the drug offenses.3 Naval Investigative Service (NIS) agents apprehended the accused and turned him over to the Japanese police. At that time, he made no statement, but he did provide a urine specimen to the Japanese police.
On or about January 8, 1980, Captain Wayne Samuelson, the resident trial counsel at Marine Corps Air Station, Iwakuni, Japan, advised the accused of rights accruing to service personnel under the terms of the Status of Forces Agreement with Japan (SOFA). Captain Samuelson specifically informed the accused that he could not enter into an attorney-client relationship with him and that he was not desirous of eliciting information regarding the acts under investigation. In addition to a form stating specific rights, Captain Samuelson routinely gave the following advice in these circumstances:
I inform them that during the stages of the investigation they will probably be contacted and requested to make a statement by the police out there and also by the procurator, or the chances that it will be made by the procurator. I also explain that under 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. I advise them 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.
* is * * # #
[A]nd I typically tell the individuals that if the Japanese prosecute the case the Americans will not.
On January 15, 1980, the accused left Japan and returned to the United States without authorized leave. He then returned voluntarily to military control on January 29, 1980. Upon his return to Iwakuni on February 7, 1980, he was confined there by order of the base executive officer at the request of the Japanese procurator. On February 9, 1980, he was again questioned by the Japanese police and, at that time, made an inculpatory statement. The Japanese police interpreter testified that the accused was advised of his rights prior to the interrogation, which advice included a statement that he did “not have to say anything against ... [his] free will.” The interpreter also testified that he may have told the accused “that if he did not confess and cooperate with ... [the interpreter] a Japanese judge would hold it against him and he would be treated more harshly by the court; but if he confessed and cooperated, the judge would be lenient with him and give him a light sentence.”
The accused, testifying on the limited issue of the voluntariness of his statement, related that he understood Captain Samuelson to have advised him “that the judge in a Japanese court would look favorably if ... [he] gave a statement and cooperated with the police,” but that if he did not, “it would reflect in ... [his] sentence.” He also remembered being “told that if the Japanese took jurisdiction, then the military wouldn’t have jurisdiction, and if the Japanese gave up their jurisdiction, then the military could take the case if they had any evidence.” He then “asked ... [Cap[223]*223tain Samuelson] ... if the Japanese did take jurisdiction would the military prosecute ____ [Captain Samuelson] told ... [him] that they would not.”4 The issue of voluntariness was properly litigated5 before both the military judge and the court members, and the court members were given proper instructions to aid their independent resolution of this issue.
On February 28, 1980, the accused was indicted by Japanese authorities for violating the drug laws of Japan. On March 3, 1980, charges of conspiracy in violation of Article 81 were preferred against the accused by United States authorities. Japanese court hearings began on May 2 and concluded on June 13, 1980. The accused received a suspended sentence.
Upon his own request, and with the permission of the Japanese procurator, the accused was released from confinement on May 9, 1980, and placed on base restriction. After the Japanese court sentence was published on June 13, the restriction was lifted. The Article 32, UCMJ, 10 U.S.C. § 832, investigation commenced on May 16, 1980, at which time the accused made a demand for speedy trial.6 The charge was referred to trial on July 12; on July 14, accused made a second demand for speedy trial. The trial started on August 5, 1980. The accused was in pretrial confinement for a total of 92 days and he was restricted for an additional 35 days.
I. Voluntariness of the statement.
Since it was anticipated that the Japanese authorities would exercise their right of primary jurisdiction over the drug offense, United States authorities did not participate in the interrogation of the accused or in further investigation of the offense. The advisement of rights given to the accused by the Japanese interpreter was in accordance with agreements between the United States and Japan. 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 (hereinafter referred to as THE MINUTES), Jan. 19, 1960, Re Article XVII, paragraph 9, 11 U.S.T. 1749, 1753-54, T.I. A.S. No. 4510. This advisement of rights did not satisfy the requirements of Article 31, UCMJ, 10 U.S.C. § 831, but that, by itself, does not prevent admission of the statement, since “[a]n independent investigation by a foreign police officer is ... not subject to the Uniform Code.” United States v. Swift, 17 U.S.C.M.A. 227, 231, 38 C.M.R. 25, 29 (1967), citing United States v. Grisham, 4 U.S.C.M.A. 694, 16 C.M.R. 268 (1954). Hence, there was no requirement that the accused be advised of his rights under Article 31. As we observed in United States v. Jones, 6 M.J. 226, 228 (C.M.A. 1979):
[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.
However, we must still determine whether the statement was voluntarily made. A review of the evidence concerning the approximately 2-hour interrogation by the Japanese police discloses no overt coerciveness affecting the voluntariness of the confession. Cf. United States v. [224]*224O’Such, 16 U.S.C.M.A. 537, 37 C.M.R. 157 (1967).
We are left with the additional matter of Captain Samuelson’s further advice to the accused that if the accused were tried by the Japanese court, there would be no further trial by court-martial. This advice, though undoubtedly correct in most instances, could well have been understood by the accused to indicate that if he made a statement to the Japanese police, it would not be used against him by United States authorities. If the accused’s testimony is to be believed, this was “one of the motivating forces” that caused him to make the statement. It is apparent from the sentence imposed by the Japanese court that the accused benefited by “cooperating” with the Japanese police. Thus, we must decide whether advice that was correct when given and resulted in a benefit to the accused constitutes an “unlawful inducement” when viewed in the light of later happenings and/or changed circumstances. See Article 31(d), 10 U.S.C. § 831(d).
It is argued that the case of Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), requires an affirmative resolution of this question. Bram was tried for, and convicted of, the murder of the captain of the American ship, HERBERT FULLER, his wife, and the second mate, while on the high seas. The crew of the HERBERT FULLER initially confined a Seaman Brown for the offense, but, in consequence of a statement made by Brown to the effect that he “saw Bram ... kill the captain,” id. at 536, 18 S.Ct. at 184, they also confined Bram. The ship was “steered” for Halifax, Nova Scotia, and both Brown and Bram were confined by the Canadian authorities at the request of the Consul General of the United States. Prior to being brought before the Consul, Bram was taken from prison to the office of a detective where he was stripped7 and searched. During that time, the detective told “ ‘Bram ... [that he was] trying to unravel this horrible mystery,’ ” and that “ ‘Brown ... [had] made a statement that he saw ... [Bram] do the murder.’ ” Bram responded: “ ‘He could not have seen me; where was he?’ ” The detective answered: “ ‘He states he was at the wheel.’ ” Bram then replied: “ ‘Well, ... he could not see me from there.’ ” Bram concluded by remarking: “ ‘Well, I think, and many others on board the ship think, that Brown ... [was] the murderer; but I don’t know anything about it.’ ” Id. at 539, 18 S.Ct. at 185. This conversation was admitted at trial over objection as a confession by Bram.8
After reviewing the historical precedents in both Great Britain and the United States, and the scope of the fifth amendment, the Supreme Court concluded that the conversation should not have been admitted on the ground that it was involuntarily made. Mr. Justice White stated:
It cannot be doubted that, placed in the position in which the accused was when [225]*225the statement was made to him that the other suspected person had charged him with crime, the result was to produce upon his mind the fear that if he remained silent it would be considered an admission of guilt, and therefore render certain his being committed for trial as the guilty person, and it cannot be conceived that the converse impression would not also have naturally arisen, that by denying there was hope of removing the suspicion from himself. ... To communicate to a person suspected of the commission of crime the fact that his co-suspect has stated that he has seen him commit the offence, to make this statement to him under circumstances which call imperatively for an admission or denial and to accompany the communication with conduct which necessarily perturbs the mind and engenders confusion of thought, and then to use the denial made by the person so situated as a confession, because of the form in which the denial is made, is not only to compel the reply but to produce the confusion of words supposed to be found in it, and then use statements thus brought into being for the conviction of the accused. A plainer violation ... of the letter as of the spirit and purpose of the constitutional immunity could scarcely be conceived of.
Id. at 562, 564, 18 S.Ct. at 194, 195.
The decision in Bram appears to be premised on the fact that the Canadian detective was acting for United States authorities since no Canadian law had been violated. Hence, the conditions surrounding the questioning were interpreted in accordance with United States constitutional principles. It should be noted that there was no advisement of rights even under Canadian law, and that the accused had not yet been taken before the United States Consul for whom he was being held. Consequently, the conditions surrounding the questioning take on an odious character. However, there is dicta in Bram, which, if taken literally, would bar almost any statement given to official authorities. The majority opinion quotes with approval this statement from 3 Russell on Crimes 478 (6th ed.):
“But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence____A confession can never be received in evidence where the prisoner has been influenced by any threat or promise', for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.”
168 U.S. at 542-43, 18 S.Ct. at 187 (emphasis added).
However correct the latter part of the quotation may have been at the time, it is clear that it no longer correctly states the law. In United States v. Ferrara, 377 F.2d 16, 17 (2d Cir. 1967), it was held:
That language has never been applied with the wooden literalness urged upon us by appellant. The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of “law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined * *.” Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 ... (1961); ...
In United States v. Rybka, 507 F.2d 53 (5th Cir.), cert. denied 421 U.S. 950, 95 S.Ct. 1684, 44 L.Ed.2d 105 (1975), the juvenile defendant, after having been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was told by an FBI agent “that it would be in his ‘best interest’ to tell the” truth “and that telling a lie might result in his being left ‘holding the bag.’ ” 507 F.2d at 55. At trial, Rybka asserted “that he was offered an inducement to incriminate himself, ... and that even the slightest [226]*226inducement” was “prohibited” by Bram v. United States, supra. The Court of Appeals disposed of his assertion in this manner:
Undoubtedly, there may be circumstances when an admonition to the accused to tell the truth may render a subsequent statement inadmissible but it is now clearly the law that ordinarily such an admonition does not furnish sufficient inducement to render objectionable a confession thereby obtained unless threats or promises are brought into play. [Citation omitted.]
Our independent review of the “totality of the circumstances” leaves us in no doubt that the findings of the District Court as to the voluntary character of Rybka’s confession are strongly supported by the evidence and are not due to be disturbed on appeal.
507 F.2d at 56-57.
In United States v. Ballard, 586 F.2d 1060 (5th Cir. 1978), the accused testified that she was told by the detaining officer “that he would see to it that she got fifteen years for each of three offenses and that, if she cooperated, her chances for probation were excellent.” Id. at 1062. The agent disputed this version, but there were areas where there was no factual dispute: the agent informed the accused that her sister had made a full confession; that in return for her cooperation the Government would make a recommendation for clemency; and what the maximum penalty was and what she might reasonably expect to receive. The Court of Appeals found none of these circumstances sufficient to disturb the lower court’s ruling admitting the accused’s statement.
A truthful and noncoercive statement of the possible penalties which an accused faces may be given to the accused without overbearing one’s free will. Such an account may increase the chance that one detained will make a statement. However, as long as the statement results from an informed and intelligent appraisal of the risks involved rather than a coercive atmosphere, the statement may be considered to have been voluntarily made. ...
Determining whether a confession is voluntary requires an assessment of human motivation and behavior. One factor, by itself, is seldom determinative. Consequently, the impact of any one of the aforementioned acts will vary according to the circumstances under which they were performed and the state of mind of the accused.
Id. at 1063.
We thus conclude that most recent interpretations of Bram haye emphasized another part of that decision:
[W]hether a confession was voluntary was primarily one of fact, and therefore every case must depend upon its own proof.
168 U.S. at 549, 18 S.Ct. at 189. Accordingly, we must look to the facts surround: ing the giving of the inducement and assess its effect upon the likelihood of its “overbearing ... [his] free will.” United States v. Ballard, supra.
The circumstances surrounding the advice given by Captain Samuelson certainly imply no atmosphere of coerciveness since it was made clear that Captain Samuelson was in no way acting as the accused’s attorney and his advice was a standard one, given to all personnel accused of violating Japanese law. However, we must consider that advice in combination with the similar advice given by the Japanese interpreter at the police station. As we have noted above, there were no aspects of overt coerciveness during the police interrogation. Nonetheless, the prospect of more lenient treatment resulting from “cooperation” with the police undoubtedly had a bearing on the accused’s decision to make an incriminating statement. On the other hand, we find nothing to indicate that this inducement, even if read in conjunction with the countervailing advice that failure to give a statement would result in a harsher sentence, would lead to the conclusion that the accused’s freedom of will was in any way legally impaired. We believe the situation [227]*227was more akin to placing the accused in the position of making a tactical judgment as to his making a statement. The advice provided the accused with “an informed and intelligent appraisal of the risks involved,” United States v. Ballard, supra, which bore upon his decision. We might speculate that in such circumstances the accused might well have made the statement in order to forestall a more severe sentence from the Japanese court even knowing that it might be used against him later by military authorities. In retrospect, such a choice was correct. Such analysis, however, then raises the prospect that the statement to gain leniency from the foreign court might be false in content since the truth of the statement in that court would not be as important as the fact of the making of the statement. Our examination of the other evidence in the case, particularly the testimony of the witnesses against the accused, leads us to conclude that the statement is amply corroborated.
In sum, we hold that the advice given to the accused, though it may have prompted him to make the statement, did not overbear his free will in making that choice; that there was no illegal or unlawful inducement in the advice; and, accordingly, that the statement was voluntarily made. Thus, there was no error in the admission of the statement into evidence. See United States v. Jones, supra.
II. Authority to confine at the request of a foreign government.
The authority of a United States military commander to confine a United States serviceperson to ensure his or her presence at a foreign trial has not been previously addressed by this Court. We need not explore a commander’s inherent authority to confine in certain situations,9 which exists independently of the Uniform Code,10 since here the accused was confined by United States authorities at the specific request of the Japanese government, after he had returned to Japan from an unauthorized absence in the United States.
Certain basic principles of international law are pertinent to this issue. It is an accepted principle of international law that “[a] sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction.” Wilson v. Girard, 354 U.S. 524, 529, 77 S.Ct. 1409, 1412, 1 L.Ed. 1544 (1957), citing The Schooner-Exchange v. M’Faddon, 7 Cranch (11 U.S.) 116, 136, 3 L.Ed. 287 (1812). The stationing of United States forces overseas other than during periods of war prompted a series of international agreements concerning the rights and privileges of the government and the citizens of the United States and the several host governments and their citizens. The specific agreement involved here is an Executive Agreement which was negotiated pursuant to Article VI of The Treaty of Mutual Cooperation and Security Between the United States of America and Japan (hereinafter referred to as THE TREATY), Jan. 19, 1960, 11 U.S.T. 1632, T.I.A.S. No. 4509, entitled, 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 (hereinafter referred to as THE AGREEMENT), Jan. 19, 1960, 11 U.S.T. 1652, T.I.A.S. No. 4510.
Article VI of THE TREATY states:
For the purpose of contributing to the security of Japan and the maintenance of international peace and security in the Far East, the United States of America is [228]*228granted the use by its land, air and naval forces of facilities and areas in Japan.
The use of these facilities and areas as well as the status of United States armed forces in Japan shall be governed by a separate agreement, replacing the Administrative Agreement under Article III of the Security Treaty between the United States of America and Japan, signed at Tokyo on February 28, 1952, as amended, and by such other arrangements as may be agreed upon.
Senate Executive E, 86th Cong., 2d Sess. 65 (1960) (footnotes omitted); see also 11 U.S.T. 1634.
In a letter of transmittal dated March 10, 1960, President Eisenhower forwarded THE AGREEMENT to the Senate, stating:
To the Senate of the United States:
With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Treaty of Mutual Cooperation and Security Between the United States of America and Japan, signed at Washington on January 19, 1960.
I transmit also, for the information of the Senate, one copy each of the following documents: Agreed minutes and three exchanges of notes relating to the treaty; 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; and agreed minutes and an exchange of notes relating to the agreement. All of the above-mentioned documents were signed or, in the case of the minutes, initialed at Washington on January 19, 1960.
The treaty constitutes the foundation for cooperation, a partnership with Japan, based on mutual confidence and sovereign equality, not only in the security field but in the political and economic fields. It reflects the broad area of mutual interest between the United States and Japan. The treaty is entirely defensive in character and intent and represents a threat to no country or people. It is in full conformity with the purposes and principles of the United Nations and reflects the dedication of both parties to strengthen the efforts of the United Nations to maintain international peace and security.
A fuller explanation of the treaty, agreement, and related documents is contained in the report of the Secretary of State, which is transmitted herewith for the information of the Senate.
DWIGHT D. EISENHOWER
Senate Executive E, 86th Cong., 2d Sess. 59 (1960)(emphasis added); (also appears at 106 Cong. Rec. 5129 in modified form).
Article XVII, paragraph 5, of THE AGREEMENT provides:
5. {a) The military authorities of the United States and the authorities of Japan shall assist each other in the arrest of members of the United States armed forces, the civilian component, or their dependents in the territory of Japan and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.
(b) The authorities of Japan shall notify promptly the military authorities of the United States of the arrest of any member of the United States armed forces, the civilian component, or a dependent.
(c) The custody of an accused member of the United States armed forces or the civilian component over whom Japan is to exercise jurisdiction shall, if he is in the hands of the United States, remain with the United States until he is charged by Japan.
Senate Executive E, 86th Cong., 2d Sess. 81 (1960); see also 11 U.S.T. 1665.
THE MINUTES, concerning paragraph 5 of Article XVII of THE AGREEMENT, state:
1. In case the Japanese authorities have arrested an offender who is a member of the United States armed forces, the civilian component, or a dependent subject to the military law of the United States with respect to a case over which Japan has the primary right to exercise [229]*229jurisdiction, the Japanese authorities will, unless they deem that there is adequate cause and necessity to retain such offender, release him to the custody of the United States military authorities provided that he shall, on request, be made available to the Japanese authorities, if such be the condition of his release. The United States authorities shall, on request, transfer his custody to the Japanese authorities at the time he is indicted by the latter.
2. The United States military authorities shall promptly notify the Japanese authorities of the arrest of any member of the United States armed forces, the civilian component or a dependent in any case in which Japan has the primary right to exercise jurisdiction.
Senate Executive E, 86th Cong., 2d Sess. 94 (1960); see also 11 U.S.T. 1753.
While there is still some dispute over the relative supremacy of Executive agreements as contrasted to treaties,11 and whether or not specific international agreements are deemed to be self-executing, the question of the binding nature of the obligations of the Japanese SOFA and its implementing interpretations was resolved by Wilson v. Girard, supra. There the Supreme Court said:
In the light of the Senate’s ratification of the Security Treaty after consideration of the Administrative Agreement, which had already been signed, and its subsequent ratification of the NATO Agreement, with knowledge of the commitment to Japan under the Administrative Agreement, we are satisfied that the approval of Article III of the Security Treaty authorized the making of the Administrative Agreement and the subsequent Protocol embodying the NATO Agreement provisions governing jurisdiction to try criminal offenses.
354 U.S. at 528-29, 77 S.Ct. at 1411.
The AGREEMENT gives the United States custody over a member of its forces accused of a violation of Japanese law “until he is charged by Japan.” Art. XVII, para. 5(c). The MINUTES quoted above further define this right by giving the Japanese authorities the right to retain custody if “they deem that there is adequate cause and necessity,” but in all other cases custody will be given to United States authorities, subject to the serviceperson’s being made available upon request, until the time of indictment by the Japanese. It [230]*230would appear that custody may remain with the United States beyond the time of indictment even to the time of sentencing, or, possibly even completion of appeal. In this case custody remained with the United States until time of sentencing.
The word “custody” is not defined in either the AGREEMENT or the MINUTES, and we do not have the benefit of any pertinent negotiating history which might have some bearing on the intentions of the parties. Absent that, we must define the term “custody” in accordance with the commonly accepted usage in this country.12 Black’s Law Dictionary 847 (5th ed. 1979), defines custody as:
The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man’s person by virtue of lawful process or authority.
The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Term “custody” within statute requiring that petitioner be “in custody” to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. [Citation omitted.] Accordingly, persons on probation or released on own recognizance have been held to be “in custody” for purposes of habeas corpus proceedings.
Thus “custody” is susceptible of being interpreted to include the spectrum from confinement to any lesser form of control over the person of the accused.13
It would appear that the quantum of restraint must be determined by the officer having command control of the accused on the basis of his decision as to his ability to comply with the requirement to “make the accused available” upon request to the Japanese authorities and to transfer the accused to the custody of the Japanese authority after indictment. In reaching that decision, the commander must consider the likelihood of the accused’s fleeing his control and the consequent embarrassment to the United States at being unable to transfer the accused upon request of the host government. Cf. para. 18, Manual for Courts-Martial, United States, 1969 (Revised edition). There are a number of value judgments which impact upon that largely discretionary decision. If the likelihood of flight is miniscule, then the level of restraint need only be nominal; if the likelihood of flight is great, much more restraint [231]*231would be necessary. Other considerations include the freedom of movement within the foreign country, the ease of leaving the country, the current state of the trial proceedings, the likelihood of conviction, as well as the relative severity and likelihood of sentence. These and other factors would have direct bearing on the quantum of restraint necessary in a given case.
We also note that the several services differ in the power accorded commanders to confine at the request of a foreign government. The Air Force does not acknowledge any such power and Air Force commanders will not accept custody of an individual accused of a crime in a foreign country if the foreign government requires that he be confined or if the local commander determines that pretrial confinement is necessary to insure his presence for the foreign trial unless there is an independent basis for pretrial confinement under the Uniform Code. See AFR 110-25, para. 3 (April 23, 1973). Both the Army and the Navy take the position that the custody requirements of the various SOFAs provide authority for restraint, including confinement of servicepersons, pending disposition of foreign charges. See AR 27-10, ch. 17; COMNAVFORJAPANINST 5820.16A, para. 406a(3) (May 10, 1976). It is the latter regulation with which we are dealing here. Paragraphs 0405 and 0406 thereof both recognize the importance of the obligation of the United States to produce the accused for investigations and trial and to avoid embarrassment to the United States where a suspect was allowed to leave Japan prior to final disposition of his case.14
Several federal courts have upheld the authority of military commanders, under the provisions of a SOFA-type agreement, to retain custody of an accused charged by a foreign government with a violation of its laws. In Williams v. Rogers, 449 F.2d 513 (8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 976, 30 L.Ed.2d 799 (1972), the accused was charged by the Philippine government and custody was returned to the United States Air Force in accordance with the Military Bases in the Philippines Agreement, T.I.A.S. No. 1775, as amended by T.I.A.S. No. 5851. Through administrative error, the accused was reassigned from the Philippines. When Air Force authorities attempted to reassign him to the Philippines, the accused sought to block the transfer in federal court. In sustaining a lower court order dissolving a temporary restraining order, the United States Court of Appeals held:
[W]e think that once the President is properly found to possess the power to negotiate jurisdictional arrangements of the sort present here, it is not impermissible also to find that he has the correlative power to enforce the obligations of our servicemen undertaken pursuant thereto. We emphasize, also: (a) The obvious interest of the military in securing the custody of those of its personnel who are charged with the commission of crimes by Philippine authorities pending their trial; (b) The impact and adverse effect that an open and well-publicized breach of the solemn obligations imposed on commanding officers by the custodial provisions of Article XIII has upon the reputation and integrity of American Servicemen stationed in the Philippines and upon the military mission and purposes of our bases there; (c) Our conviction that custodial provisions of the kind involved here can have present and future meaning and significance only if Armed Forces supervisory personnel are deemed to possess the power to correct administrative errors of the kind that occurred here; (d) Our feeling that the benefit to Sergeant Williams in being permitted to remain on base and in American custody pending the final disposition of the Philippine proceedings against him produced a concomitant obligation to report and appear when required to do so and to remain responsive to the curative orders [232]*232of superior officers if, as here, a mistake should occur through inadvertence and oversight.
Id. at 521-22.
In United States ex rel. Stone v. Robinson, 309 F.Supp. 1261 (W.D. Pa.), aff'd., 431 F.2d 548 (3d Cir. 1970), Stone had been convicted of robbery and attempted rape by a Japanese court. Pending final appeal, Stone was returned to United States Air Force authorities by the Japanese, with a formal request that he be retained in custody for the purpose of trial. Stone subsequently left Japan of his own volition. The court concluded:
Since the United States Government had an obligation to retain custody of the petitioner pursuant to the SOFA with the Government of Japan, and the petitioner had an obligation to make himself available when wanted by the Government of Japan, neither the Government of the United States could breach its obligation to Japan, nor could the petitioner after the appellate proceedings became final, suddenly leave the jurisdiction of Japan. When he did leave the jurisdiction of Japan, it was incumbent upon the United States Government to arrest and seize him, wherever it could find him, and return him. I therefore conclude and hold that the arrest by the Armed Forces of the petitioner as of the time when he was arrested was a valid arrest and that the Government of the United States is entitled to his custody for the purpose of returning him to the jurisdiction where it was bound to hold him in custody.
Id. at 1268-69 (footnote omitted).
In Holmes v. Laird, 459 F.2d 1211 (D.C. Cir.), cert. denied, 409 U.S. 869, 93 S.Ct. 197, 34 L.Ed.2d 120 (1972), three servicemen fled West Germany while pending trial in German courts. They surrendered to Army officials in the United States and brought habeas corpus action to prevent being returned to West Germany for trial. The court held:
Obviously, the constitutional provisions appellants invoke exerted no force of their own upon the Federal Republic in that exercise of its sovereignty. And while, of course, American officials having custody of appellants are fully subject to constitutional commands, it must be remembered that the contemplated surrender is the precise response required of the United States by its treaty commitments to the Federal Republic. The Constitution plays no part in this case unless somehow it operates to negate those commitments in the circumstances appellants allege.
Id. at 1218 (footnote omitted).
In Cozart v. Wilson, 236 F.2d 732 (D.C. Cir. 1956), vacated with direction to dismiss the petition for habeas corpus as moot, 352 U.S. 884, 77 S.Ct. 126, 1 L.Ed.2d 82 (1956), the petitioners had been convicted of numerous offenses by Japanese courts and complained that they were being kept in the Marine Corps and in Japan after their enlistments had expired. The court upheld dismissal of the petition, stating:
Since Japan has not, either at the time of the offenses with which the present petitioners are charged or at any later time, ceded to the United States jurisdiction of these offenses, Japan has jurisdiction to try the petitioners and might hold them in jail pending trial. They do not and cannot complain because they are not so strictly confined.
Id. at 733.
In Smallwood v. Clifford, 286 F.Supp. 97 (D.C. 1968), judgment vacated as moot, No. 22,053 (D.C. Cir. May 14, 1969), the accused was placed in pretrial confinement by the Army “after having been implicated in the murder of a female Korean national.” Id. at 98. The Korean government gave notice of its intention to exercise its primary right of jurisdiction. In addition, Smallwood was subsequently charged under the Uniform Code. Smallwood contended that neither the Code nor the Manual for Courts-Martial, United States, 1951, gave authority for delivery of American servicepersons to foreign governments for trial and that his “fourteenth” [sic] amendment right to due process would be violated [233]*233if he were tried by a Korean court. The court disposed of Smallwood’s arguments thusly:
It should be stated at the outset that under the applicable principles of international law, Korea should have exclusive jurisdiction to punish offenses committed within its territory, unless it expressly or impliedly consents to surrender its jurisdiction. Thus, the Status of Forces Agreement embodied the consent of the Korean government to a diminished role in the enforcing of its territorial laws. The United States did not waive any jurisdiction over crimes committed within its territory. The Agreement constituted a unilateral waiver by Korea of criminal jurisdiction in certain limited cases. Where a crime falls outside the area covered by this limited waiver, primary jurisdiction is maintained by the nation within which the crime occurred. Ratification of this principle by the United States Senate is clearly unnecessary, since Senate approval could have no effect on a grant of jurisdiction by the Republic of Korea, which the United States could not rightfully claim.
Id. at 100 (footnotes omitted).
Petitioner states that both the Constitution and the Uniform Code of Military Justice provide the method of trying servicemen abroad and that this method cannot be altered by an Executive Agreement. This contention has merit only in instances in which there has been no violation of the criminal code of a foreign state. However, when the offense is against the laws of another nation, primary jurisdiction lies with that nation, and only when it expressly or impliedly waives its jurisdiction will the provisions of the Uniform Code of Military Justice apply. The Girard case holds that the primary right of jurisdiction belongs to the nation in whose territory the serviceman commits the crime.
Id. at 101 (footnote omitted).
To argue that under the applicable rule of international law, visiting forces retain jurisdiction is to close one’s eyes to the historical fact that this matter is no longer left up to the implications of law but is carefully expressed in agreements which are explicit qualifications of consent to station visiting forces.
Id. at 101-02.
Our consideration of these diverse authorities leads to the following conclusions:
1. The power of the commander to confine a serviceperson at the request of a foreign government for the purpose of the exercise of foreign criminal jurisdiction is included within the definition of “custody” which comes from the treaties in force and exists independently of the Uniform Code of Military Justice.15
2. There is discretion to select that form of custody which will suffice to guarantee the appearance of the criminal accused as requested by the foreign government. A corollary to this is that the least form of restriction of locomotion necessary to ensure appearance should normally be selected.
Applying these conclusions to the instant case, we hold that the procedures followed here pass the constitutional test. The accused was confined at the request of [234]*234the Japanese procurator after he left the country without permission. Later, at his own request, the accused asked for release and the Japanese procurator agreed to a work release. In accordance therewith, the accused was released from custody and placed on base restriction. When the Japanese court imposed sentence, the accused was released from restriction even though military criminal charges were pending. It is thus evident that the confinement and restriction here were carried out solely at the request of the host nation in accordance with the agreements between the governments of the United States and Japan.
I decline to go further than the facts presented to answer our specified issues, since to do so would require an incursion into Executive diplomatic areas which are beyond our purview.16 I note in passing that our resolution of the fourth-amendment aspects of this matter would not, in other situations, necessarily resolve possible fifth-amendment considerations. For example, while the accused’s confinement here was relatively brief17 and the Japanese judicial processes were reasonably expeditious, such might not always be the case, and the extended confinement of an accused could raise both fourth-and fifth-amendment problems. Therefore, to protect against excessive restraint where foreign criminal processes may become unduly prolonged, I urge the Departments of Defense and State to adopt procedures that, at a minimum, would provide for periodic reviews and reports of confinements such as this, via military channels, to the United States embassies involved. The military channels used could be the same as, or similar to, those used now to report the status of foreign criminal cases in which United States servicepersons are involved. In this way, American ambassadors could use diplomatic channels to expedite trials when such action is deemed appropriate, and, thus, relieve military commanders of the unpleasant dilemma of having to implement what they consider to be unnecessarily extended periods of confinement caused by delays in foreign judicial processes. I [235]*235do not, however, presume to dictate such procedures since the matter is best left to those elements of the government that have the most expertise and greatest authority in protecting and insuring the rights of United States servicepersons stationed abroad.
The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.