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for military personnel, and (3) because the war powers of Congress are proportionate to the necessity for their exercise and in this instance they were exercised in excess of such necessities, such grounds of attack upon the validity of the Act relate to the wisdom and policy of the Act. In determining the validity of legislation, courts deal only with Congressional power. If Congress possesses

the power to pass the Act, then whether the legislation is wise or unwise, fair or unfair, necessary or unnecessary, is for legislative, not judicial determination. Bertelsen v. Cooney (1954, CA5th Cir), 213 F2d 275.

III. INTERNAL SECURITY; CIVIL DEFENSE
§ 37. In General

Subsection 21(a), Internal Security Act of 1950 (64 Stat 1005, 50 USC 797), which provides penalties for violating regulations or orders covering certain security subjects promulgated by the Secretary of Defense or persons designated by him, does not grant to the Secretary of Defense or his designee any authority to promulgate regulations. However, neither does this section in any way limit the power of the Secretary of Defense to issue regulations. If such regulations are valid under any statute by virtue of being issued by the head of an executive department, violators of the regulations concerning subjects included in subsec 21 (a) are subject to prosecution under the criminal provisions of that subsection. (Citing CSJAGA 1949/4241, 16 Jun 1949; JAGA 1950/5948, 3 Oct 1950; JAGA 1951/ 5593, 18 Sep 1951; JAGA 1952/4398, 13 Jun 1952, 2 Dig Ops Mil Sec 20.1; JAGA 1952/5531, 1 Jul 1952, 2 Dig Ops Posts, etc § 29.1 and other authorities.) JAGA 1954/8089. 27 September 1954.

§ 47. Giving Defense Information to Foreign Nation

§ 47.14. Instructions to court.

The accused was charged with wrongfully receiving a certain classified document containing flight test data on a certain aircraft with the intent that the information respecting the national defense contained therein was to be used to the injury of the United States. The law officer instructed the court that the elements of the offense were that the accused wrongfully and without proper authority received possession of a certain document, as alleged, that the accused's receipt of this writing was with the intent that the "information concerning the national defense contained therein" was to be used to the injury of the United States, and that, under the circumstances, the conduct of the accused was to the prejudice, etc. Held: The law officer's instructions, which, in effect, informed the court that as a matter of law the information concerned the national defense, were erroneous, inasmuch as whether the documents contained information affecting the national defense was a question of fact for the court's determination. (Citing Gorin v. U. S. (CCA 9th, 1940) 111 F2d 712, affd 312 US 19, 85 L ed 488, 61 S Ct 429; ACM 2878, Mueller, 3 CMR (AF) 314, 325.) However, since the

specification also alleged that the accused wrongfully and without proper authority received a classified document and the instructions provided the court with proper standards concerning such offense, the board of review may affirm so much of the findings of guilty as finds that the accused wrongfully and unlawfully received possession of the classified writing. (Citing U. S. v. Parker (No. 2449), 3 USCMA 541, 13 CMR 97; ACM 8005, Anderson, 15 CMR 919; U. S. v. McVey (No. 2682), 4 USCMA 167, 15 CMR 167; ACM 7604, Dewald, 13 CMR 851.) ACM 8212, Cascio (1954) 16 CMR 799.

§ 49. Treason

Loss of nationality upon conviction of treason, see CITIZENSHIP AND ALIENS § 7.51.

VI. SPECIFIC OFFENSES UNDER UNIFORM CODE
OF MILITARY JUSTICE

§ 77. Misbehavior before the Enemy

§ 77.14. Instructions to court.

The accused was found guilty of cowardly conduct in the presence of the enemy in wrongfully refusing to report to his battle station in violation of UCMJ, Art 99. A board of review modified the findings by finding that the accused did, at the time and place alleged, in the presence of the enemy wrongfully refuse to go to his defensive position in violation of UCMJ, Art 134. The accused was a member of an infantry organization on the main line of resistance in Korea. On the morning of the alleged offense, he was released from an aid station where, for some five days, he had been receiving treatment for frostbitten feet. On being discharged and directed to return to his organization, he hitchhiked the approximate six miles to his company area. His first sergeant, platoon commander, and company commander testified that he refused to resume his position on a certain hill as directed. The company commander could not remember the exact language of his refusal but admitted the accused might have said he could not return to his position. The accused testified that he told all of these persons that he could not comply with the order because he had just come from the aid station where he had been treated for frostbitten feet and he was not capable of making it to his position. After being confined in the stockade, the accused continued to receive treatment of his feet and spent most of his time lying on his cot with his feet exposed to the air in accordance with medical instructions. Eleven months after the alleged offense a doctor discovered substantial callouses on the accused's feet, a condition often accompanying frostbite. It also appeared the accused had been authorized to wear low shoes instead of boots. The government called no rebuttal witnesses. No instructions were given on physical incapacity. Held: The defense of physical incapacity was reasonably raised by the evidence and the law officer's failure to instruct thereon sua sponte constituted prejudicial error necessitating reversal.

(Citing U. S. v. Heims (No. 1497), 3 USCMA 418, 12 CMR 174.) [Latimer, J., dissented stating that the record did not support a finding that the accused acted reasonably in refusing to comply with his orders and that the accused's testimony was inconsistent and rendered improbable by his statements, acts, and conduct, and was insufficient to show more than a possible nondisabling injury caused by exposure to cold weather.] United States v. King (No. 948), 5 USCMA 3, 17 CMR 3, remanding CM 351209 (reh), King, 13 CMR 402.

§ 89. Aiding the Enemy

$ 89.11. Evidence, weight and sufficiency.

An instruction that the elements of the offense of knowingly giving intelligence to the enemy, without proper authority, are "that the accused, without proper authority, knowingly conveyed directly or indirectly, to the enemy certain information, as alleged," and "that such information was true or implied the truth, at least in part," and that "the word 'intelligence' imports that the information intended to be conveyed is the truth or implies the truth, at least in part," is sufficient to provide the court with the proper standard. (Citing UCMJ, Art 104; MCM, 1951, par 183c; Instruction 61b, Appx 1, Department of the Army Pamphlet No. 27-9, December 1952; Words and Phrases, vol 21, perm ed, p 776; Webster's New International Dictionary, 2d ed, unabridged, 1953.) ACM 8212, Cascio (1954) 16 CMR 799.

The accused was charged with attempting to give intelligence to the enemy by seeking purchases for and offering for sale to unauthorized persons a classified military writing containing flight test data on a certain type aircraft and was also charged with conspiring with others to give intelligence to the enemy by obtaining and offering for sale a classified military writing. The evidence disclosed that the accused entered an illegal money order transaction with a postal officer. Subsequently, the accused and the postal officer had a conversation with respect to classified information and pursuant to this conversation the accused wrote a letter to one Jones, who had access to classified military information. The postal officer carried this letter to Jones, obtained the classified document, and gave it to the accused. Testimony of the postal officer and three Koreans indicated that the accused was seeking Communists. The accused stated to one of the Koreans that he could get secret information and wanted to "sell that stuff."

Held that:

-

the evidence is sufficient to establish that the accused wrongfully sought purchasers for a certain classified military document as alleged. However, the second overt act alleged, i.e., "offering the document for sale" was not sustained by the evidence and the court's findings of guilty as to this alleged act were properly disapproved by the convening authority. But where the evidence substantially conforms to the allegations there is no resulting variance whereby the accused was misled or suffers from preju

dice to his substantial rights. (Citing CM 363654, Long, 12 CMR 420, 426.)

- the accused's repeated use of the word "Communist" in his conversations with the others, the use of certain code words in his letters, and conversations, lead to the conclusion that he intended to find purchasers for classified information with reason to believe it would reach the enemy.

- seeking Communists as purchasers for the classified writing which he had in his possession was the overt act which carried the accused beyond any locus poenitentiae in committing the offense. Accordingly, the evidence was sufficient to establish the alleged attempt.

- that an agreement was entered into between the accused and Jones is evidenced by the testimony of the postal officer, the letters written by the accused to Jones, and the resulting acts of Jones in stealing the classified writing in question (Marino v. U. S. (CCA 9th, 1937) 91 F2d 691). The particular form of the agreement was immaterial (Fowler v. U. S. (CCA9th, 1921) 273 F 15, 19). The agreement as well as the means employed to carry it out were clearly unlawful. Furthermore, deliberate efforts to effect the object of the conspiracy in furtherance of the agreement are amply demonstrated by the accused's acceptance of the classified writing, his subsequent efforts with respect thereto, and the act of Jones in obtaining the classified writing and giving it to the postal officer for delivery to the accused.

- however, inasmuch as the postal officer participated in the alleged conspiracy as a government informer and not criminally minded as a co-conspirator, no conspiracy existed between the postal officer and the accused, since there was no criminal agreement. (Citing CM 296630, Sidentop, 58 BR 191, 198; U. S. v. Becker (CA2d, 1933) 62 F2d 1007, 1009; Wigmore on Evidence, 3d ed, sec 2060 (d).) ACM 8212, Cascio (1954) 16 CMR 799.

VII. OCCUPIED TERRITORY; MILITARY GOVERNMENT § 105. Government, Generally

After receiving a report of the location of a British owned steamship which had been seized by the Japanese during World War II, the Supreme Commander for the Allied Powers notified the British government that the ship was available for return to its owners. Later, however, he directed the Japanese government to retain the ship for the purpose of laying and repairing submarine cables. After the ship was finally returned to its owners, they brought suit against the United States for the use of the ship. Held: The United States is not liable. The occupation of Japan was a joint venture, participated in by the United States of America, the United Kingdom, China, and Russia. Any action taken by the Supreme Commander for the Allied Powers was taken not only on behalf of the association but also on behalf of each one of the Allied Powers. The Supreme Commander was acting as agent for each of them and whatever benefit the occupying powers derived from the use of the vessel in laying and repairing

submarine cables was derived by all of them in common and not by any one more than another. Furthermore, it is unnecessary to decide the applicability to sovereign nations of the rule that parties to a joint venture are jointly and severally liable for the acts of their agents since, under the circumstances, none of the allied powers are liable for the reason that the ship never came into the possession of the occupying powers. The Japanese seized the vessel and it remained in their possession until it was returned to its owners. While the Supreme Commander directed them to retain it, this direction was issued only because Japan was powerless to act without his approval. The laying and repairing of the cables was for the benefit of Japan. The fact that the occupying powers got incidental benefit from their use during the occupation does not render them liable for the cost of laying and repairing the cables. The cost of rehabilitating Japan must be borne by Japan even though much of the work may have been approved by, or even directed by, the Supreme Commander of the Allied Powers. Anglo Chinese Shipping Co. v. U. S. (Ct Cl No. 587–53, 1955) 127 F Supp 553, cert den 23 May 1955.

VIII. TERMINATION OF WAR AND HOSTILITIES

§ 121. In General

State of war in Korea as not terminated by armistice agreement, see CM 374052, Smith, MISBEH OF SEN § 25.3.

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