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.

23 Responses to “Proposed UCMJ amendments”

  1. Gene Fidell says:

    These changes are all well and good, but how about abolishing the Court of Appeals’ gatekeeper power over access to the Supreme Court?

  2. retort says:

    1. CAAF judges are not military judges detailed to CAAF.

    2. The “any person” who disturbs a court-martial can’t possibly reach Mr. Sullivan or civilian protesters etc., at least not in a war zone. Reid v. Covert. What am I missing?

  3. Late Bloomer says:

    2 questions:

    (1) Does Sec. 531 mirror a federal statute?

    (2) Have the terms of art in 531(a)(1),(2) been defined? What is “any menacing word, sign, or gesture” and “any riot or diorder”? Is “presence” meant literally?

  4. Weirick says:

    LB,
    531 does not mirror the federal contempt statute 18 U.S.C. 401:

    A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—
    (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
    (2) Misbehavior of any of its officers in their official transactions;
    (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

  5. DC Steve says:

    Did this come out of nowhere, or were people expecting this?

    If it was slipped into an appropriations bill, does anyone have the gouge as to who, and why?

  6. Peter E. Brownback III says:

    Truer story – The chances of one of the presiding officers in 2006 or one of the military judges in 2007 holding a defense counsel in contempt were minimal – despite the best efforts of the defense counsel, jointly and severally, to induce such a holding. They tried hard – both by acts of commission and acts of omission, but the POs and MJs refused to let them have their moment of glory.

    However, if a PO or MJ had been pushed past the point of no return, $100 would not have sufficed. Confinement would have been a much more satisfactory result, both for the PO/MJ and for the glory seeking DC/CDC.

  7. Anonymous says:

    Nothing like a little anti-defense counsel diatribe to go with one’s orange juice in the morning.

  8. Late Bloomer says:

    LB,531 does not mirror the federal contempt statute 18 U.S.C. 401:A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;(2) Misbehavior of any of its officers in their official transactions;(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

    Thanks Weirick.

    It seems that the obstruction of the administration of justice is a nice modifier in the federal statute that is missing from the military version.

  9. Keith Hodges, Army DCAP says:

    If I had known Dwight Sullivan carried $100 cash with him every time he was at GTMO, I would have hit him up for a beer after the trial term was over.

  10. Butch Bracknell says:

    The nominal fine is not the point; it’s the humiliation of counsel being held in contempt — the professional opporobrium that serves to keep people in line. Confinement would often be overkill except where the contempt is based on a willful witholding of evidence.

  11. Butch Bracknell says:

    He still carries the cash even now, just to hedge his bets. Let’s all meet for beer tonight — drinks are on Dwight!!! Hizzah, Hizzah, Three Cheers for Dwight!!

  12. Anonymous says:

    Just goes to show how “impartial” those POs/MJs aren’t. So pro-govt back then, maybe even more so now. What a circus PEB3 would have created if he had this power when presiding. These guys couldn’t figure out the rules/procedures, but I’ll bet they would have been experts at taking DC’s $$

  13. No Man says:

    For those that know CAAFlog, is it surprising to you that the only time he carried $100 was when he was going in to a commission session? Speaking of beers, whose meeting up at the CAAF end o’ term bash? First beer is on me for anyone who recognizes a CAAFlog contributor at the event.

  14. Butch Bracknell says:

    and i misspelled opprobrium.

  15. Dwight Sullivan says:

    I’m a Moneyball fan. I tend to evaluate things based on end results. In 2006, a team of civilian and military defense counsel prevailed in a Supreme Court case holding the military commission system illegal. In 2007, a team of civilian and military defense counsel obtained a PTA for a 9-month sentence for their client, ensuring his release from Guantanamo and ultimate freedom. The military commission system resulted in no additional convictions under July 2008, when Salim Hamdan was convicted and received a sentence to, in effect, time served plus 5 months. So when I look at the military commission defense counsel from 2006 and 2007, I don’t glory seekers. I see advocates who successfully represented their clients. In the case of the military defense counsel, that also happened to be their military duty, which they performed remarkably well.

  16. John O'Connor says:

    Dwight:

    And part of Moneyball is relyiong on “relevant” statistics to draw conclusions. That defense counsel may have prevailed as to the legality of certain aspects of the commission system is not at all inconsistent with the assertion that certain DC were trying to be held in contempt or were glory-seekers.

    I don’t know whether it’s a fair characterization or not, and two people (you and Brownback) have been willing to associate their names with differing viewpoints on that issue. But what I do know is that a Supreme Court decision on a question of constitutional interpretation sheds no light on which of you is (more) correct.

  17. Anonymous says:

    PEB3’s viewpoint is typical of the pro-govt-types when confronted with a DC who zealously advocates for her/his client. They see it as contemptible that such a person would push back as hard as they do/did in processes that make it easy for the govt and difficult for the defenders out there. I think Dwight’s version is correct. So did the real courts.

  18. Southern Defense Counsel says:

    I have to wonder: Assuming that PEB3 is saying that DCs were trying to get placed in contempt, and also assuming that (most) DCs are smart enough to get placed in contempt if that is their actual desire, would PEB3 be saying that the judges decided not to impose sanctions despite the fact that the rules would have called for them? If so, how does that comport with a MJ or PO being a fair arbiter of facts and law? If TC had similarly broken the rules would the MJ or PO have imposed contempt sanctions on TC because it would have been a less politically thorny issue? And if so, is that the correct way for a judge to look at the issue? Just questions…

  19. Marcus Fulton says:

    Back to Retort’s question: I don’t read the proposed Article 48 to indicate confusion about whether military judges are detailed to CAAF or, for that matter, courts of inquiry. They’re not. Instead, by specifying that “a military judge detailed to any court-martial” has contempt power, the statute seems calculated to deprive summary courts-martial and special courts-martial tried without a military judge of that power. The current Article 48 simply states that “[a] court-martial . . . may punish for contempt.”

  20. John Harwood says:

    Where’s the re-write of Art 120? The other two issues seem like solutions looking for problems.

  21. Lee Marsh says:

    John – I agree a re-write of Art. 120 would be a welcome change, but I think that folks are underestimating the value of the subpoena duces tecum for the Article 32 process. It means the Government might have the power to actually go out and get evidence that may benefit the Accused at a 32. It helps the entire process for the CA to see this evidence before referral. Let’s do away with sham “paperwork” 32’s that consist of nothing but what NCIS/CID/AFOSI/etc. want us to see. In fact, maybe we should add regular subpoena powers to Article 32’s (if the IO is a Judge Advocate?) I mean, isn’t the 32 an important part of the Court-Martial process??

  22. Thomas F. Hurley says:

    Mr. Marsh
    The 32 is an extremely important part of the court-martial process; however, I cannot conceive of a meeting between lawyers for any party in which those lawyers imagine ways to help the other side in an upcoming hearing or investigation. (“Man, if we could only get some exculpatory evidence admitted at this 32 in order render all of our previous work on this case meaningless. If only.”)
    I agree that TCs should more in 32s, but they (sometimes…it’s been ‘we’) are only going to do the minimum. Blame it on the difficult administrative burdens placed on TCs the world over.
    Finally, is anyone else bummed out over the loss of Ronnie James Dio? Ruined my whole week.

  23. Lee Marsh says:

    Mr. Hurley – I think you misinterpret my remarks. I don’t for a minute think that TC wants to go get the exculpatory evidence. No, by Government I mean the ability of a 32 investigating officer or the CA to subpoena or order subpoena. Thus, my parenthetical about the IO as a Judge Advocate. TCs have an extremely difficult job and many burdens. I just think that the ability for a 32 investigating officer to subpoena would be proper for this very important step in the MJ process.