trarily denied, or it is ascertained that the individual is being mistreated or that the conditions of his custody or confinement are substandard, the case should be referred to the diplomatic or consular mission concerned for appropriate action.

(4) To the extent possible, military commanders should seek to conclude local arrangements whereby the U.S. military authorities may be permitted to accord U.S. military personnel confined in foreign institutions treatment, rights, privileges, and protection similar to those accorded such personnel confined in U.S. military facilities. The details of such arrangements should be submitted to the Judge Advocate Generals of the Services.

(5) The military authorities shall make appropriate arrangements with 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 U.S. military authorities. In appropriate cases, diplomatic or consular officers should be requested to keep the military authorities advised as to the anticipated date of the release of such persons by the foreign authorities.

(6) In cooperation with the appropriate diplomatic or consular mission, milltary commanders will, insofar as possible, assure that dependants of U.S. military personnel, nationals of the United States serving with, employed by or accompanying the armed forces, and dependents of such nationals when in the custody of foreign authorities, or when confined (pretrial and posttrial) in foreign penal institutions receive the same treatment, rights and support as would be extended to U.S. military personnel in comparable situations pursuant to the other provisions of this paragraph (i).

(j) Discharge. U.S. military personnel confined in foreign prisons shall not be discharged from military service until the completion of the term of imprisonment and the return of the accused to the United States, except that in unusual cases such discharges may be accomplished upon prior authorization of the Secretary of the Department concerned.

(k) Information policy. It is the basic policy of the DoD that the general public and the Congress must be provided promptly with the maximum information concerning status of forces matters that is consistent with the national interest. Information shall be coordinated and furnished to the public

and the Congress in accordance with established procedures, including DoD DIrectives 5122.5, "Assistant Secretary of Defense (Public Affairs)," July 10, 1961, and 5148.5, "Assistant to the Secretary of Defense (Legislative Affairs)," November 13, 1961.

§ 151.4

Reports on the exercise of foreign criminal jurisdiction.

The following reporting system which has been implemented by the military departments will be continued after revision in accordance with the provisions herein. The Department of the Army is designated as executive agent within the Department of Defense for maintaining and collating information received on the basis of the reports submitted.

(a) Annual reports. Annual reports, based on information furnished by the three military departments covering the period December 1, through November 30, will be prepared by the Department of the Army and submitted within such time as may be required but not later than 120 days after the close of the reporting period. The reports shall be submitted in one reproducible copy to the Office of the General Counsel, DoD, in accordance with departmental implementation of this part. The reporting content of this requirement will be as follows:

(1) A statistical summary (DD Form 8381) by country and type of offense of all cases involving U.S. personnel.

(2) A report signed by the appropriate service commander in each country for which DD Form 838 is prepared, concerning his personal evaluation of the impact, if any, the local jurisdictional arrangements have had upon accomplishment of his mission and upon the discipline and morale of the forces, together with specific facts or other in-formation, where appropriate, substantiating his opinion.

(3) A report of the results of visits made and particular actions taken by appropriate service commanders pursuant to § 151.3(1).

(4) A report of the implementation of 10 U.S.C. 1037 showing by country and military service.

(1) The total number of cases in which funds were expended and

1 DD Form 838 filled as part of original docu-ment.

(11) Total expenditures in each of the following categories:

(a) Payment of counsel fees,
(b) Provision of bail,

(c) Court costs and other expenses. (b) Quarterly reports. Quarterly reports for the periods ending November 30, February 28, May 31, and August 31, consisting of lists of U.S. personnel imprisoned and released, will be submitted, in accordance with departmental implementation of this part to the Department of the Army and by the Department of the Army, as executive agent, to the Assistant Secretary of Defense (Administration) in four (4) copies, on or before the fifteenth day following the report quarter as follows:

(1) An alphabetical list of U.S. personnel who were imprisoned during the reporting period pursuant to sentence of confinement imposed by a foreign court, indicating for each individual his home address. grade, and serial number (where applicable), offense of which found guilty, date and place of confinement, length of sentence to confinement imposed, and estimated date of release from confinement.

(2) A similar list of the names of prisoners released during the reporting period.

An information copy of these lists shall be furnished by the appropriate service commander to the diplomatic or consular mission in the country concerned.

(c) Other reports. (1) Each military department will maintain on a current basis, and submit monthly to the Assistant Secretary of Defense (Administration) in four (4) copies, a list of the most important cases pending, with a brief summary of the salient facts in each case. Selection of the cases to be inIcluded will be left to the judgment of the appropriate officials of each military department. Instances of deficiency in the treatment or conditions of confinement in foreign penal institutions or arbitrary denial of permission to visit such personnel shall be considered important cases. Lists covering the previous month will be submitted on the sixth (6) day of the month following.

(2) Important new cases or important developments in pending cases will be reported informally and immediately to the Office of the General Counsel, DoD, and confirmed formally,

(d) Report Control Symbols. Report Control Syml ols are assigned to the re

§ 151.5 Effective date and implementation.

This part is effective immediately. Two (2) copies of revised regulations shall be forwarded to the General Counsel, DoD, for approval prior to issuance, within (60) days from the effective date hereof.

§ 151.6 Resolution of ratification, with reservations, as agreed to by the Senate on July 15, 1953.

(a) Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of Executive T, Eighty-second Congress, second session, an agreement between the parties to the North Atlantic Treaty Regarding the Status of their Forces; signed at London on June 19, 1951.

(b) It is the understanding of the Senate, which understanding inheres in its advice and consent to the ratification of the Agreement, that nothing in the Agreement diminishes, abridges, or alters the right of the United States of America to safeguard its own security by excluding or removing persons whose presence in the United States is deemed prejudicial to its safety or security, and that no person whose presence in the United States is deemed prejudicial to its safety or security shall be permitted to enter or remain in the United States.

(c) In giving its advice and consent to ratification, it is the sense of the Senate that:

(1) The criminal jurisdiction provisions of Article VII do not constitute a precedent for future agreements;

(2) Where a person subject to the milltary jurisdiction of the United States is to be tried by the authorities of a receiving state, under the treaty the Commanding Officer of the armed forces of the United States in such state shall examine the laws of such state with particular reference to the procedural safeguards contained in the Constitution of the United States;

(3) If, in the opinion of such Commanding Officer, under all the circumstances of the case, there is danger that the accused will not be protected because

of the absence or denial of constitutional rights he would enjoy in the United States, the Commanding Officer shall request the authorities of the receiving state to waive jurisdiction in accordance with the provisions of paragraph 3(c) of Article VII (which requires the receiving state to give "sympathetic consideration" to such request) and if such authorities refuse to waive jurisdiction, the Commanding Officer shall request the Department of State to press such request through diplomatic channels and notification shall be given by the Executive Branch to the Armed Services Committees of the Senate and House of Representatives;

(4) A representative of the United States to be appointed by the Chief of Diplomatic Mission with the advice of the senior U.S. military representative in the receiving state will attend the trial of any such person by the authorities of a receiving state under the agreement, and any failure to comply with the provisions of paragraph 9 of Article VII of the Agreement shall be reported to the Commanding Officer of the armed forces of the United States in such state who shall then request the Department of State to take appropriate action to protect the rights of the accused, and notification shall be given by the Executive Branch to the Armed Services Committees of the Senate and House of Representatives.

151.7 Fair trial guarantees.

The following is a listing of “fair trial" safeguards or guarantees which are considered to be applicable to U.S. state court criminal proceedings, by virtue of the 14th Amendment as interpreted by the Supreme Court of the United States. The list is intended as a guide for the preparation of country law studies prescribed by § 151.3(d), and for the determinations made by the designated commanding officer pursuant to § 151.3 (e) through (g). Designated commanding officers should also consider in this connection other factors which could result in a violation of due process of law in

state court proceedings in the United States.

(a) Criminal statute alleged to be violated must set forth specific and definite standards of guilt.

(b) Accused shall not be presecuted under an ex post facto law.

(c) Accused shall not be punished by bills of attainder.

(d) Accused must be informed of the nature and cause of the accusation and have a reasonable time to prepare a defense.

(e) Accused is entitled to have the assistance of counsel for his defense. (f) Accused is entitled to be present at his trial.

(g) Accused is entitled to be confronted with witnesses against him.

(h) Accused is entitled to have compulsory process for obtaining witnesses in his favor.

(i) Use of evidence against the accused obtained through unreasonable search or seizure or other illegal means is prohibited.

(j) Burden of proof is on the Government in all criminal trials.

(k) Accused is entitled to be tried by an impartial court.

(1) Accused may not be compelled to be a witness against himself. He shall be protected from the use of a confession obtained by torture, threats, violence, or the exertion of any improper influence.

(m) Accused shall not be subjected to cruel and unusual punishment.

(n) Accused is entitled to be tried without unreasonable (prejudicial) delay.

(0) Accused is entitled to a competent interpreter when he does not understand the language in which the trial is conducted and does not have counsel proficient in the language both of the court and of the accused.

(p) Accused is entitled to a public trial.

(q) Accused may not be subjected to consecutive trials for the same offense which are so vexatious as to indicate fundamental unfairness.

The criteria for determining eligibility for a clearance shall relate, but not be limited, to the following:

(a) The attempt or commission of any act of sabotage, espionage, treason, sedition, or anarchy, or conspiring with, or aiding or abetting another to commit or attempt to commit any act of sabotage, espionage, treason, sedition or anarchy.

(b) Establishing or continuing a sympathetic association with a saboteur, spy, traitor, seditionist, anarchist, or with an espionage agent or other representative of a foreign nation whose interests may be inimical to the interests of the United States, or with any person who advocates the use of force or violence to overthrow the Government of the United States or the alteration of the form of Government of the United States by unconstitutional means.

(c) Any membership or activity knowingly in sympathy with or in support of any foreign or domestic organization, association, movement, group or combination of persons who instigate, conspire or foment the commission of acts to deny other persons their rights under the Constitution of the United States or who seek to alter the form of Government of the United States by force or violence or by other unconstitutional

means.

(d) Intentional, unauthorized disclosure to any person of classified information, or of other information, disclosure of which is prohibited by law.

(e) Performing or attempting to perform his duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States.

(f) Wilful violation or disregard of security regulations.

(g) Any deliberate misrepresentations, falsifications or omission of material facts from a personnel security questionnaire or personal history statement, or in testimony or evidence adduced during the course of a hearing.

(h) Any criminal, infamous, dishonest, or notoriously disgraceful conduct, habitual or episodic use of intoxicants to excess, drug addiction, drug abuse, or sexual perversion.

(1) Facts, circumstances or conduct reflecting activity of a reckless, irresponsible or wanton nature which indicates such poor judgment, unreliability or untrustworthiness as to suggest that the applicant might fail to safeguard classified information entrusted to his care and use or might disclose classified information to unauthorized persons or otherwise assist such persons, whether deliberately or inadvertently, in activities inimical to the national interest.

(j) Any illness, including any mental condition, of a nature which, in the opinion of competent medical authority, may cause significant defect in the judgment or reliability of the applicant with due regard to the transient or continuing effect of the illness and the medical findings in such cases.

(k) Any facts or circumstances which furnish reason to believe that the applicant may be subjected to coercion, influence, or pressure which may be likely to cause action contrary to the national interest. Such facts may include but are not limited to the presence of a close relative of the applicant or of the applicant's spouse in a nation whose interests may be inimical to the interests of the United States, or in satellites or occupied areas of such a nation, under circumstances permitting coercion or pressure to be brought on the applicant through such relatives which may be likely to cause action contrary to the national interest. The term close relative includes parents, brothers, sisters, offspring, and

(13) National Aeronautics and Space Administration;

(14) National Science Foundation; (15) Small Business Administration; and such other Agencies as may agree to process industrial security clearance cases under the provisions of this part.

(c) All applicants within the United States and its possessions who require access to classified defense information and all U.S. citizens who require NATO security clearance in their employment by foreign contractors in NATO countries shall as a minimum be investigated in accordance with the standards set forth in 30 FR 11533.

(d) This part applies to cases in which the applicant is eligible to be considered for a clearance and a Department of Defense activity has recommended either: (1) That such clearance be denied or revoked, or (2) that such clearance be suspended under § 155.8(a).

(e) In cases where an applicant's clearance has been suspended or a Statement of Reasons issued, the subsequent termination of employment will not affect the applicant's right to pursue these procedures.

(f) The Program may be extended to other cases at the direction of the Assistant Secretary of Defense (Comptroller) or his designee.

(g) The Program does not extend to cases involving access to communications analysis material or information, to cases in which a clearance is administratively withdrawn without prejudice upon a finding that the applicant is not eligible, or to cases in which an interim clearance is withdrawn during an investigation. § 155.4 Standard and policy.

(a) Access to classified information shall be granted or continued only to those applicants who have been determined eligible based upon a finding that to do so is clearly consistent with the national interest.

(b) In the course of an investigation, interrogation, examination, or hearing, the applicant may be requested to answer relevant questions or to authorize others to release relevant information about himself. The applicant is expected to give full, frank, and truthful answers to relevant questions and to authorize others to furnish relevant information. The applicant may elect on constitutional or other grounds not to comply; however, his refusal or failure to furnish or authorize the furnishing of relevant

and material information may prevent the Department of Defense from reaching the affirmative finding required by paragraph (a) of this section, in which event any security clearance then in effect shall be suspended by the Assistant Secretary of Defense (Comptroller), or his designee, and the further processing of his case discontinued.

(c) Inquiries to the applicant or to others concerning an applicant will be limited to matters relevant to a determination whether granting access to classified information is clearly consistent with the national interest and shall not be directed to the applicants opinions about: (1) Religious beliefs and affiliations; (2) racial matters; (3) political candidates or parties other than those included in § 3155.5(c); and (4) the constitutionality or wisdom of legislative policies. Because religious and racial matters may be serious stress areas for many applicants where § 155.5(j) is in issue, limitations (1) and (2) herein are not binding on psychiatrists or psychologists performing mental aminations or evaluations of applicants; however, responses to such questions as may be asked under such circumstances shall be evaluated only as to the bearing they may have on the thought processes of present or past mental condition. Neither religious beliefs nor racial matters shall be basis for refusing to grant or continue access to classified information.

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(d) Determinations under this part shall be in terms of the national interest and shall in no sense be determinations as to the loyalty of the applicant; nor shall they be considered a bar to employment in a position not requiring access to classified information.

(e) The facts, circumstances and conduct as determined under § 155.5 may, in the light of all the surrounding conditions, be the basis for denying or revoking a clearance. The facts, circumstances and conduct vary in implication, degree of seriousness, and significance depending upon all the factors in a particular case. Therefore, the ultimate determination must be an overall common sense one based upon all the information which properly may be consideerd under this Part including, but not limited to, such factors as the following: the seriousness of the facts, circumstances and conduct, the implications, the recency, the motivations, the extent to which the conduct was voluntary and undertaken with