For the second portion of my article about the JSC, I will address the role of the Executive Order in updating the Preamble, the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), the Punitive Articles, and Nonjudicial Punishment (NJP) Procedure – Parts I through V of the MCM, respectively. As I mentioned last week, Congress gave the President authority to make pre- and post-trial rules, including modes of proof (Article 36), and to establish maximum punishments (Article 56). The President exercises this power by issuing an Executive Order (EO).
Rule, EO, MCM… what has authority vs. what is guidance – it is confusing. Conversationally, and simplistically, I would say that the MCM has three levels of authority: (1) the law trumps all [the Constitution and the UCMJ]; (2) Parts I-V of the MCM have Presidential rule-making authority [not including Discussion paragraphs]; and (3) the rest is merely guidance, policy, and reference material. To amend Parts I-V of the MCM requires an EO, and this is why there are no elements, maximum punishments, or sample specifications in Part IV of the MCM for the 2012 version of Article 120.
In a normal year, without so many amendments to the UCMJ, the JSC will solicit proposed changes in January each year from the judiciary, trial and defense counsel organizations, and the JAG schools. See here for more details. The JSC will receive numerous suggestions from the field and from the public. The JSC voting members will decide whether to sponsor a proposed change and the research and vetting will be delegated to the working group. After proposals are fully prepared, the voting members will determine which proposals will comprise the draft EO for that year.
The draft EO is to be named after the year in which the EO was drafted, e.g.: “2012 Amendments to the Manual for Courts-Martial.” You can find all the EOs amending the MCM here. The draft EO must then be published in the Federal Register and notice provided for a Public Meeting to address the draft EO, usually about 60 days after publication. Historically these public meetings are seldom attended; however, public and JAG comments are commonly submitted. The JSC works diligently to seek input from as many sources as possible – fellow judge advocates, judges, retirees, civilian experts, and others – and will routinely communicate with those who submit proposals. At the end of 90 days, the JSC gathers all public comments and responds to each one, sometimes amending the draft EO. The JSC responses and the final draft EO are published again in the Federal Register. If extremely efficient, 120 days will have elapsed from the time the draft EO was assembled and first published.
After the public comment period has ended and comments have been addressed and/or incorporated, DoD reviews the draft EO. This can take as little as a month or as long as three months, and sometimes there are minor changes to the draft EO. After the DoD General Counsel approves the draft EO, it is then released to Executive Agencies outside of DoD, e.g.: DOJ, DOT, DHS, etc. This review can take another 30-90 days, and again, there may be minor edits to the draft EO. After the Executive review, the draft EO is finally approved by DoD for release to OMB and the White House. Cue Schoolhouse Rock music, “I’m just a bill…” waiting patiently for approval.
Except that draft EO is NOT a bill. It is merely a document, in a line of other documents, waiting for the President’s signature. It can be approved quickly or after much delay/deliberation. In 2009, the JSC prepared a draft EO to add child pornography as an Article 134 offense and a few other minor changes. Because of possible amendments to Articles 47, 48, and 120, the 2009 EO was delayed within DoD. The 2009 draft EO was amended to account for the intervening NDAA’s and, for various reasons, was not approved until December 2011 (EO 13593). Much of the delay centered on the uncertainty of pending Article 120 amendments. Remember that Article 120 was to be amended in 2010, but it did not happen. The JSC was hoping to swiftly send a prepared EO to the President as soon as Article 120 was amended in 2010. In the end, Article 120 was not amended until December 2011, and by that time, the rules of evidence had moved to the forefront.
From 2007 to 2010, the Federal Rules of Evidence (FRE) were being revised. The amended FRE became effective on 1 December 2011. [As you can see, December 2011 was a big month: FY12 NDAA, EO 13593, and amended FRE]. In anticipation of the FRE amendments, the JSC spent most of 2011 researching and vetting changes to the MRE to conform to FRE amendments (see MRE 1102) with the resulting product becoming the “2012 Annual Review” [misnomer because it really represents the 2011 annual review]. The 2012 Annual Review EO is in the pipe now and currently undergoing the Executive Agency review. This EO contains the amended MREs and the maximum punishments for new Articles 120, 120b, and 120c.
Amending the MRE was a gargantuan effort, and it impacted the ability of the JSC to simultaneously prepare for the implementation of new Article 120 [not to mention the time consumed by the preparation and printing of the 2012 MCM]. The 2012 Annual Review EO contains about 60 pages – a very long EO. However, the 2012.5 draft EO – the current JSC effort – will likely be longer and will likely include the following: implementing changes for amendments to Articles 47, 48, 54, 120, 120b, and 120c; Fosler, Jones, and Campbell conforming changes; RCM 405 amendment to provide MRE 412 procedure at an Article 32; a complete re-writing of the MRE analysis in Appendix 22; and other minor changes to the rules. I believe these two EOs will comprise the largest changes to the MCM since 1984, and this is the reason the JSC will need to reprint the MCM again in 2013.
Optimism… The President will [hopefully] approve the 2012 Annual Review EO before the election. Meanwhile, the JSC will complete the 2012.5 draft EO and comply with the public notice requirements by the end of December 2012. Ultimately, the 2012.5 draft EO will be signed by the President in early 2013. At least that is what we are telling ourselves… What this means is that there will be no implementing guidance – no Part IV materials or RCM amendments – for new Article 120 until spring or summer of 2013.
On that high note, I will stop here and hope you are more informed than confused. I will respond to questions and tie up the EO discussion next week, along with my description of the JSC’s role in recommending UCMJ amendments. CK