FAO Legal Issues -- September 1999

Mark Riley

Lieutenant Colonel (Ret.) Riley is a former Military Intelligence officer and Sub-Saharan Africa FAO. He currently practices law in Annapolis, Maryland. His major practice areas include criminal defense; military criminal law (i.e., court-martial, Article 15's, etc); military administrative law (i.e., correction of military records, security clearance adjudications, etc); veterans' law (i.e., appeals of VA rulings, veterans reemployment rights claims); federal tort claims (i.e., personal injury and medical malpractice claims against the U.S. Government); and probate administration. Should any F.A.0. Journal readers desire him to address a particular legal topic in upcoming articles, he can be contacted through his web site at lawyers. com/markriley or via e-mail at mrileyesq@aoL com.

Criminal Law: Status of Forces Agreements

As a member of our Armed Forces, you can be sure that if you ever have a legal problem while serving overseas, it will be more difficult to solve than if you had the same legal problem while serving in CONUS. As a Foreign Area Officer, you will often be serving in remote or isolated geographical locations where there is no ready access the protective umbrellas of your parent service's infrastructure, its legal assistance offices, or American civilian attorneys. What would be a relatively easy to resolve legal issue in the United States can quickly become confusing and complicated, if not overwhelming, while serving abroad.

Assuming you are not living in U.S. owned or leased quarters while serving overseas, what should you do when your landlord attempts to evict you? What are your rights to sue or seek other redress in the event of a breach of contract by the foreign contractor whom you engaged to provide you a service? Suppose, while you are driving your privately owned vehicle back from an embassy cocktail party, you accidentally crash into an other vehicle, causing serious property damage and personal injury to a foreign national - how will you handle this situation? If the host country police charge you with assault, rape, or murder, what are your legal rights? Does "diplomatic immunity" really provide you any meaningful protection? Which sovereign has jurisdiction over you, the United States Government or the host country? Can you expect protection under a Status of Forces Agreement?

I intend to address many of the above issues in upcoming columns. However, the usefulness of these articles will very much depend upon the input I receive from you, the members of the Foreign Area Officer Association. Thus, I am appealing for your help in this endeavor. I ask that you share your experiences with your fellow F.A.0. Journal readers so that we can all benefit. If you have any war stories to relate about legal problems you experienced while serving abroad, please jot them down and send them to me. Provide me a fairly detailed description of your legal problem, to include the outcome (i.e., how it was or was not resolved) and "lessons learned" that might benefit your FAO brethren. I will use these anecdotes as either case studies or background scenarios for future articles. (You should mail your stories to The Law Offices of Mark F. Riley, L.L.C., ATTN: Mark Riley, 91 Cathedral Street, P.O. Box 1606, Annapolis, MD 21404-1606. You can also forward them via facsimile to FAX 410-280-8650 or via e-mail to MRileyEsq@aol.com. Please include your name and phone number and/or e-mail address so that, if I have any questions, I can contact you.) To facilitate a frank and candid exchange of information and ideas, unless you specifically instruct me otherwise, I will protect your identity in any article that may result from your story.

In order to get the ball rolling on this series, I will briefly review the applicability of Status of Forces Agreements (SOFA) in criminal matters. The United States has entered into SOFAs with many foreign governments in order to resolve potential jurisdictional conflicts and to insure that U.S. military personnel stationed abroad are afforded the same legal rights and protections that would be available if they were stationed in CONUS. U.S. service members are subject to U.S. law, in the form of the Uniform Code of Military Justice (UCMJ), wherever in the world they may be deployed. However, American military personnel are also subject to the Foreign Criminal Jurisdiction (FCJ) of the country in which they are serving. It is the policy of the United States Government to maximize U.S. jurisdiction to the extent permitted by the circumstances and applicable law in each individual case. A SOFA is the means by which the United States Government accomplishes this objective.

In general, this article will specifically discuss the terms of the North Atlantic Treaty Organization (NATO) SOFA. However, the United States also has SOFAs with a number of other countries, more often than not in conjunction with a military alliance. Other countries with which the United States currently has SOFAs include Australia, Japan, South Korea, and Panama. All of these SOFAs are very similar to the NATO SOFA. Under the terms of the NATO SOFA, the United States has "exclusive jurisdiction" over offenses that are not prohibited by the host government. For example, if a soldier stationed in Germany violates Article 86 (Absent without leave) of the UCMJ, the military may try him by court-martial, but the Germans will not prosecute him because being AWOL is not a violation of German law. On the other hand, the host country has exclusive jurisdiction over offenses that are unique to the host country and not prohibited by U.S. law. For example, hitchhiking on the autobahn is a violation of German law but not of the UCMJ. If the German polizei arrest an American soldier for hitchhiking, the Germans can prosecute him, but his military commander cannot court-martial him.

The vast majority of criminal cases involve "concurrent jurisdiction." In such situations, the offense is a violation of both the UCMJ and host country law. For example, robbery violates both Article 122 of the UCMJ and German law. Thus, a U.S. soldier accused of robbery could conceivably be tried under either the military or the German court system. The NATO SOFA has a number of provisions that determine which government, that of the United States or of the host country, will exercise jurisdiction over U.S. military personnel when the alleged offense is one over which there is concurrent jurisdiction. The general rule is that the "primary right" (first right) to exercise jurisdiction is agreed to be with the host government unless there is an exception. The two standard exceptions to the host government's primary right to exercise jurisdiction are "inter se (among themselves) cases and "official duty" cases.

An inter se case is one in which the alleged offense is committed by a U.S. service member against an American citizen, against an American citizen's property, against the security of the U.S. Government, or against the property of the U.S. Government. Under the NATO SOFA, in such cases, the U.S. Government has the primary right to exercise criminal jurisdiction over the service member. However, if the offense is committed against a citizen of the host country or his property, then the host country has the right to exercise primary jurisdiction. An official duty case is one in which the alleged offense is committed by a member of the U.S. armed forces and arises out of any act or omission done while in the performance of official duty. For example, if an American serviceman is driving an official military vehicle while on official military business and hits a German civilian, his U.S. military commander has the primary right to court-martial him and the German court probably will not try him even though the victim is German. However, if the same serviceman happened to be off-duty and driving his privately owned vehicle at the time of the accident, a German court could try his case.

The NATO SOFA also provides mechanisms whereby either the United States or the host country can waive its jurisdiction. Under Article VII of the NATO SOFA, if a waiver is requested, the party with primary jurisdiction "shall give sympathetic consideration" to that request. However, the Department of Defense policy on waivers of jurisdiction is to maximize U.S. jurisdiction but not to seek a waiver in every case. By way of example, the Netherlands has agreed "that upon request of the U. S. authorities" the Netherlands will "waive their primary right to exercise jurisdiction under Article VII, except where they determine that it is of particular importance that jurisdiction be exercised by the Netherlands authorities." Similarly, Germany has granted a blanket waiver of primary jurisdiction with the right of recall "where the competent German authorities hold the view that, by reason of special circumstances in a specific case, major interests of German administration of justice make imperative the exercise of German jurisdiction."

Under the NATO SOFA, a U.S. service member who is arrested and charged with a criminal offense by the host government is entitled to the following protective rights: a prompt and speedy trial, to be informed of the charges against him before the trial, to confront and cross-examine adverse witnesses, to call witnesses on his own behalf, to be represented by a lawyer of his own choice, to the use of an interpreter, to have a U.S. Government observer present at the trial, to communicate with the U.S. Government.

In addition to the rights guaranteed to a defendant under any particular SOFA, the regulations of the each of our military services provide that support be extended to any U.S. service member who has been arrested or is facing trial by a foreign government. In general, the parent service will assist the service member in posting bail and obtaining the services of local defense counsel (i.e., a civilian attorney licensed to practice in the foreign jurisdiction) and, if necessary, an interpreter. The parent service will also provide a trial observer and military legal advisor. The service member's commander is required to visit him at least once a month while he is in jail. Finally, a member of the U.S. Armed Forces being held in a foreign jail maintains his entitlement to medical and dental care and legal assistance.

As you can see, a SOFA provides considerable legal protection to a service member fortunate enough to be stationed in a country that has entered into such an agreement with the United States. However, in most cases, the United States has entered into SOFAs only with those countries in which there is either a sizeable permanent U.S. troop presence or to which U.S. forces are periodically deployed. The vast majority of countries to which our FAOs may be deployed as attachés, security assistance officers, in-country trainees, liaison officers, exchange officers, or military advisors do not have SOFAs with the United States. As you might imagine, a FAO who gets into legal trouble in a non SOFA country may be faced with a particularly dicey situation. As I mentioned earlier, with a little help from some of our FAO Journal readers, we will be discussing some of the issues related to such predicaments in future columns.

1999, Foreign Area Officer Association
Springfield, Virginia
Maintained by LTC Steve Gotowicki.
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