A friend o’ CAAFlog called our attention to H.R. 5136, the proposed National Defense Authorization Act for Fiscal Year 2011. It includes two UCMJ amendments. The second is particularly significant — it would authorize subpoena duces tecum power for an Article 32 investigation. The first amendment would allow military judges to exercise contempt power for violations of their orders, thereby greatly expanding the contempt power beyond the current direct contempt limitation. It would also increase the maximum fine for contempt from $100 to $1,000. (True story: when I was the chief defense counsel for the military commission system, I took $100 in cash to every commission session, just in case):
SEC. 531. ENHANCED AUTHORITY TO PUNISH CONTEMPT IN MILITARY JUSTICE PROCEEDINGS.
(a) In General- The text of section 848 of title 10, United States Code (article 48 of the Uniform Code of Military Justice), is amended to read as follows:
`(a) Authority To Punish Contempt- A military judge detailed to any court-martial, a Court of Inquiry, the Court of Appeals for the Armed Forces, a military Court of Criminal Appeals, a provost court, or military commission may punish for contempt any person who–
`(1) uses any menacing word, sign, or gesture in its presence;
`(2) disturbs its proceedings by any riot or disorder; or
`(3) willfully disobeys the lawful writ, process, order, rule, decree, or command of same.
`(b) Punishment- The punishment for contempt under subsection (a) may not exceed confinement for 30 days or a fine of $1,000, or both.
`(c) Inapplicability to Military Commissions Under Chapter 47A- This section does not apply to a military commission established under chapter 47A of this title.’.
(b) Effective Date- The amendment made by this section shall apply with respect to acts of contempt described in section 848(a) of title 10, United States Code (article 48(a) of the Uniform Code of Military Justice), as amended by subsection (a), that are committed after the date of the enactment of this Act.
SEC. 532. AUTHORITY TO COMPEL PRODUCTION OF DOCUMENTARY EVIDENCE PRIOR TO TRIAL IN MILITARY JUSTICE CASES.
(a) Subpoena Duces Tecum- Section 847 of title 10, United States Code (article 47 of the Uniform Code of Military Justice), is amended–
(1) in subsection (a)(1), by striking `board;’ and inserting `board or has been duly issued a subpoena duces tecum for an investigation, including an investigation pursuant to section 832(b) of this title (article 32(b)); and’; and
(2) in subsection (c), by striking `or board,’ and inserting `board, trial counsel, or convening authority,’.
(b) Repeal of Obsolete Provisions Relating to Fees and Mileage Payable to Witnesses- Such section is further amended–
(1) in subsection (a)–
(A) by striking paragraph (2); and
(B) by redesignating paragraph (3) as paragraph (2); and
(2) by striking subsection (d).
(c) Technical Amendments- Subsection (a) of such section is further amended by striking `subpenaed’ in paragraphs (1) and (2) (as redesignated by subsection (b)(1)(B)) and inserting `subpoenaed’.
(d) Effective Date- The amendments made by subsection (a) shall apply with respect to subpoenas issued after the date of the enactment of this Act.