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man is not forgotten. DOD Directive 5525.1 provides in 6. In cooperation with the appropriate diplomatic or consular mission,
paragraph IVO as follows: military commanders will, insofar as possible, assure that dependents of
United States military personnel, nationals of the United States serving
I. Treatment of United States Personnel Cortfined in Foreign Penal In- with, employed by and accompanying the wed forces, and dependents
stitutions. of such nationals when in the custody of foreign authorities, or when
1. Insofar as practicable and subject to the laws and regulations of the
country concerned and the provisions of any agreement therewith, the confiied (pre-trial and post-trial) in foreign penal institutions receive
the same treatment, rights and support as would be extended to United
Department of Defense seeks to assure that United States military per- States military personnel in comparable situations pursuant to the other
sonnel (1) when in the custody of foreign authorities are fairly treated at provisions of Section IV.1.
all times and (2) when confiied (pretrial and post-trial) in foreign penal
institutions are accorded the treatment and are entitled to all the rights, This paragraph of the DOD Directive is implemented by Chapter 3, AR
privileges and protections of personnel confined in United States mili- 27-SOISECNAVINST 5820.4DlAFR 110-12, September 5, 1974.
tary facitlites. Such rights, priviliges and protections are enunciated in 0) Search and Seizure in the Receiving State. In
present Service directives and regulations, and include, but are not the 1976 case of United States v. Jordan 69 the Court of
limited to, legal assistance, visitation, medical attention, food, bedding,
clothing, and other health and comfort supplies. Military Appeals extended the protection of the Fourth
2. In consonance with this policy, United States military personnel Amendment to American servicemen beyond that pre-
contined in foreign penal institutions shall be visited at least every thirty viously afforded by the rationale of the DeLeo 70 decision.
days, at which time the conditions of confmement as well as other mat- In Jordan the serviceman involved was questioned by Bri-
ter relating to their health and welfare willbe obsewed. The Services will tish police concerning several robberies which had occur-
maintain on a current basis records of these visits as reported by their
respective commands. Records of each visit should contain the follow- red in the American housing area. Jordan acquiesced in a
ing information. request by British police to search his area. The subse-
a. Names of personnel conducting visit and date of visit. quent search was conducted, in the main, by the British
b. Name of each prisoner visited, serial number, and sentence for civil authorities who were accompanied by two air police-
which he is serving imprisonment. men from Jordan's base. Theair police took no part in the
c. Name and location of prison.
d. Treatment of the individual prisoner by prison warden and other actual search except to unlock a padlock on Jordan's
personnel (include a short description of the rehabilitation program, if locker and look around the room. When incriminating
any, as applied to the prisoner). evidence was discovered, the British police requested a
e. Conditions existing in the prison, i.e., light, heat, sanitation, photographer and Air Force personnel complied. Judge
food, recreation, religious activities. Fletcher, writing for the majority, articulated the court's
f. Change in status of prisoner, conditions of confinement or
transfer to another institution. rationale as follows:
g. Condition of prisoner, physical and mental. "The temptation confronting American officials to avoid the Fourth
h. Assistance given to prisoner, i.e., legal, medical, food, bedding, Amendment by merely delegating primary search authority to those not
clothing, and health and comfort supplies. subject to our Constitution coupled with the unending judicial dilemma
i. Action taken to have any deficiencies corrected, either by the of resolving what is and is not sufficient participation to trigger the Con-
local commander or through diplomatic or consular mission. stitutional guarantee leads us to conclude that the DeLeo standard no
j. Designation of command responsible for prisoner's welfare and longer is satisfactory to safeguard the constitutional rights of servicemen
reporting of visits. stationed in a foreign country. .. .
k. Information as to discharge of a prisoner from the service or ter-
mination of confinement. We therefore hold that for trials by court-martial commencing after
3. Should it not be practicable for the individual's commanding of- [March 12,19761, whenever American officials are present at the scene
ficer or his representative to make visits, the designated commanding of a foreign search or, even though not present, provide any informa-
officer should be requested to arrange that another unit be responsible tion or assistance, directive or request, which sets in motion, aids, or
for such visits or to request that the appropriate diplomatic or consular otherwise furthers the objectives of a foreign search, the search must
mission assume responsibility therefor. Whenever necessary, a medical satisfy the Fourth Amendment as applied in the military community
officer should participate in the visits and record the results of his ex- before fruits of the search may be admitted into evidence in a trial by
court-martial." 71
amination. If reasonable requests for permission to visit United States
military personnel are arbitrarily denied, or it is ascertained that the in- The court further restricted the court-martial use of evi-
dividual is beiig mistreated or that the conditions of his custody or con- dence obtained from foreign officials.
fmement are substandard, the case should be referred to the diplomatic
or consular mission concerned for appropriate action. If the government seeks to use evidence obtained either directly or
4. To the extent possible, military commanders should seek to con- indirectly from a search conducted solely by foreign authorities, a show-
clude local arrangements whereby the United States military authorities ing by the prosecution that the search by foreign officials was lawful, ap-
may be permitted to accord United States military personnel confied in plying the law of their sovereign, shall be a prerequisite for its admission
foreign institutions treatment, rights, privileges, and protection similar in evidence upon motion of the defense. 72
to those accorded such personnel confiied in United States military
facilities. The details of such arrangements should be submitted to the Finally, the court stated that the trial judge had discretion
Judge Advocates General of the Services. to refuse to admit the evidence unlesshe was satisfied that
5. The military authorities shall make appropriate arrangements with the "foreign search does not shock the conscience of the
foreign authorities whereby custody of individuals who are members of
the armed forces shall, when they are released from confinement by
foreign authorities, be turned over to the United States military 69, 24 U.S.C.M.A. 156, 51 C.M.R. 375 (1976).
authorities. In appropriate cases, diplomatic or consular officers should 7'3. 5 U.S.C.M.A. 148, 17 C.M.R. 148 (1954).
be requested to keep the military authorities advised as to the antici- 71. 24 U.S.C.M.A. at 158-59, 51 C.M.R. at 377-78.
pated date of the release of such persons by the foreign authorities. 72. Id. at 159 and 378.