In the first of a three-part series, I will write about the composition, role and function of the JSC in amending the MCM and proposing legislation.  I am the Executive Secretary of the JSC, but I am writing in my personal capacity in an effort to shed some light on the JSC process.  Although the JSC members and its meetings are in no way secretive or solitary, few of us are familiar with the mission and day-to-day activities of the JSC.

If you are wondering whether this blog is worth the read, let me ask you:  (1) How is the MCM amended?  (2) Which parts of the MCM can be attributed with the President’s rule-making authority under Article 36, UCMJ?  (3) Who drafts and edits the Analysis in appendices 21-23 of the MCM?  (4) Is the MCM, by itself, binding authority that can be cited in court or an appellate brief?

MY ANSWERS:  (1) by you, the JSC, the President, and Congress; (2) Parts I, II, III, IV, and V; (3) the JSC of course; and (4) no.   If none of that surprises you or makes you want to know more, then I would say this blog is not worth the read.  It is rather like the quote above, which I love and is on point…

“MJ blogs are to blogs as military music is to music.”

If I could “Sweet Home Alabama” this topic, I would.

The JSC was first created in 1972 by the TJAGs and the DoT General Counsel (Coast Guard) and was chartered to propose and evaluate amendments to the UCMJ and the MCM.  When the MCM was reorganized in 1984 by Executive Order (EO) 12473 and 12484, the President thereafter required the Secretary of Defense to review the MCM annually and provide recommendations.  DoD Directive 5500.17, Role and Responsibilities of the JSC, captures this requirement and fleshes out its purpose.  The JSC is composed of a voting member and a working group member from each Service (5 + 5).  There are three non-voting advisors:  one from CAAF (usually a staff attorney); one from the DoD Office of the General Counsel; and one from the Chairman’s Office of Legal Counsel.

In a nutshell, the JSC collects (from the field and from its own research) proposals to amend the MCM, and if approved by a majority of the voting group, proposals are added to the JSC’s “Annual Review.”  This annual review will eventually (sometimes months later) become an EO.  Proposals to amend the UCMJ are handled in much the same way; however, it really does “take an act of Congress” to make the changes.  UCMJ proposals are sent to through DoD OGC to the House and Senate Armed Services Committee, and are sometimes vetted through the Code Committee [which is not the JSC] under Article 146, UCMJ.

I will talk more about the MCM next week, in relation to EOs, but the MCM contains rules, statutes, and reference material.  Parts I through V of the MCM are rules prescribed by the President pursuant to his Article 36 rule-making authority.  The actual rules are contained in EOs and are amended by subsequent EOs; therefore, I would argue that the true citation to the rule itself should reference the controlling EO – not the MCM.  We all cite to the MCM regularly, but a typo or misprint in the MCM does not affect the actual rule as contained in the relevant EO.  The Discussion, analysis, and most of the appendices are non-binding, treatise-like guidance from the JSC.  Read the introduction to Appendix 21 for more detail.  The MCM is intended to be an all-in-one reference for the deployed attorney far from civilization, and its design is reflective of that goal.  In the digital age; however, the usefulness of its references may be waning.

The MCM should be viewed as a snapshot in time – hopefully accurate for more than a minute or two, but almost certainly out of date within a year of its publication.  Prior to the 1994 edition of the MCM, annual updates were printed and to be inserted by the user into the 1984 edition of the MCM (3-ring binder).  After 1994, the MCM was to be published annually – an unattainable goal.  In practice it was published every 2-4 years; however, the longer the time between publications, the more outdated the MCM will become.  The 2008 MCM had become so outdated that the JSC decided not to wait until the next EO was signed by POTUS; that is why the new-new Article 120 does not yet have any elements (or other POTUS-approved discussion) in Part IV of the 2012 MCM.  See page IV-70, MCM (2012 Edition).

Final MCM comments:  it has heavier paper (60lb versus 50lb); it has almost 100 fewer pages, but it is just as thick; most copies will be spiral bound; check out the Jones-, Fosler-, and Campbell-related Discussion paragraphs added throughout the MCM [start with RCM 307 on page II-28 – look for bracketed NOTES].  I will talk more about the interplay between updating the MCM and EOs next week, to include how EOs are drafted, staffed, published and approved by POTUS.  The week after that, I will talk about UCMJ amendments.  I hope you enjoyed today’s JSC blog, and I look forward to answering your questions.  CK

8 Responses to “The Joint Service Committee on Military Justice (JSC) – Part I”

  1. Soonergrunt says:

    MJ blogs are to blogs as military music is to music.” If I could “Sweet Home Alabama” this topic, I would.

    (Rips sleeves off t-shirt, holds up lighter) FREEBIRD!  FREEBIRD!

  2. Charlie Dunlap says:

    This is very interesting, but it says much that the Executive Secretary of the JSC – which is completely an adminstrative creature of the Executive Branch – sees an only “sometimes” role for the Code Committee, which is actually the Congressionally-created venue for the airing of military justice issues, to include especially those deserving of consioderation for legislation.  The secretive nature of rthe JSC – to include its failure to keep the Code Committee regularly informed of its activities (beyond once-a-year brieifngs) – does not well serve a military justice system increasingly subject to public criticism for its seeming inability to effectively hold people accountable.

  3. Phil Cave says:

    Have they started publishing a transcript of their public meetings yet?
    Have they started making transcripts of their meetings available by FOIA yet?
    Have they started making a “record” that can be used in the same way we (well maybe except Justice Scalia) sometimes refer to?
    Having participated in these meetings, albeit some years ago, it would be interesting transparency on the process to make records public.  Maybe a JSC blog like the 31(b) Blog. 

  4. Zachary Spilman says:

    What existed before the Code Committee as constituted under Article 146, which was first enacted in 1989? Since the President has had the authority to prescribe rules for courts-martial since the beginning (and see Article 36, first enacted in 1956), the JSC seems to be a necessary part of the executive (command) function.

    This isn’t to say the process couldn’t (or shouldn’t) be more transparent (absent claims of executive privilege, of course), but the notion that the JSC owes an accounting of its activities to the Code Committee doesn’t seem quite right.

  5. G Kratz says:

    This is a fascinating behind-the-scenes look that can actually impact how we look at (and cite) the different parts of the MCM.  Thanks for contributing to our understanding of the process.

  6. Charlie Dunlap says:

    It seems like the role of the Code Committee may become supplanted by another Executive Branch body (in addition to the JSC) and that is the Defense Legal Policy Board https://www.federalregister.gov/articles/2012/04/06/2012-8251/establishment-of-the-defense-legal-policy-board
     

    It is not entirely clear to me how this Board will function, or why DoD believes they need it in additon to the JSC and the Code Committee, but tiem – I suppose – will tell,  It is – pardon the pun – not yet clear (to me anyway) as to how transparent that body will be, and to what extent it will duplicate or impinge upon the statutory process that Congress established in Article 146. 

    I also do not know why this Board was not raised to the Code Committee during the meeting in March.   In any event, more discussion an analysis is needed to examine and clarify the roles of these various groups so as to ensure they produce the best recommendations about the military justice system 

  7. Dwight Sullivan says:

    The Code Committee was actually part of the original (1950) UCMJ.  It was established by Article 67(g):

    The Court of Military Appeals and The Judge Advocates General of the armed forces shall meet annually to make a comprehensive survey of the operations of the code and report to the Committees on Armed Services of the Senate and of the House of Representatives and to the Secretary of Defense and the Secretaries of the Departments the number and status of pending cases and any recommendations relating to uniformity of sentence policies, amendments to this code, and any other matters deemed appropriate.

  8. Salty Policy says:

    About transparency, I am not sure I can speak “for” the JSC and its history – how it got to be what it is today and how its procedures were developed.  I can say that there is no palpable desire or notion among the current JSC members to frustrate transparency.  What I think is interesting, and related to human nature, is that things that are difficult to see are somehow mysterious.  What I mean by this is that when transparency is enforced – and it is often required in the JSC process – no one cares.  No one is interested.  At our public meeting last November to vet the current EO (MRE amendments), NOT ONE person showed up.  At the Annual Code Committee meeting, NOT ONE member of the public showed up.  The JSC could probably be more transparent, but it seems to me that it would matter little.  Only perception, or notions of perception, might be affected.

    If there is motivation to improve transparency, I would think that amending the DOD Directive would be the first step.  But I would ask you to read the EO process (next week’s article) first.  I think there is a decent amount of transparency already.  I’ll be interested to read what you think.

    Also, I wanted to address my rather parochial citation guidance above.  It is clear that the MCM can be, and is regularly, cited in footnotes or in court.  The MCM does reflect law and rules (see paragraph 4 in the Preamble, page I-1).  I just wanted to emphasize two things:  the MCM becomes outdated quickly, and it is reflective of authority that exists elsewhere (UCMJ and EOs).