Late last year, I tracked the development of Mil. R. Evid. 514 (the victim advocate privilege). First, on November 21, 2011, I noted the October publication in the Federal Register of a Notice of Proposed Changes to the Military Rules of Evidence. These changes were mainly stylistic – in line with similar changes to the Federal Rules of Evidence – but they also included discussion of Mil. R. Evid. 514. This was, I believe, the first ever discussion of Mil. R. Evid. 514 in the Federal Register.

The next day, on November 22, in a comment to my own post, I noted that there seemed to be an issue with the public comment period for Mil. R. Evid. 514:

Well this is interesting…

The 2009 JSC Annual Review of proposed MCM amendments includes the MRE 514 language. Link here. At the top of the document it states:

JSC 2009 Annual Review Package of Proposed Amendments to the Manual for Courts-Martial by Executive Order. Initially Published in the Federal Register on September 17, 2009.

However, the 17 Sep 2009 Federal Register notice contains no mention of MRE 514. Link here.

Considering the amendments in the 19 October 2011 notice are supposed to be stylistic, I wonder if we’re missing a notice and comment period for MRE 514?

My concern at that time was that there had never been a public comment period for Mil. R. Evid. 514. Those concerns only grew.

On December 4, I discussed the 2012 National Defense Authorization Act bills in the House and Senate, both of which included provisions requiring creation of a victim advocate provision (i.e., Mil. R. Evid. 514).

Soon after, on December 13, I noted that both houses of Congress withdrew this requirement, because “the DOD has indicated that a new Executive Order that would amend the MCM by adding a proposed new Military Rule of Evidence 514 Victim Advocate Privilege has completed all review within the Office of Management and Budget and is now with the President for review and approval.” In that post I again wondered about the public comment period for Mil. R. Evid. 514.

But then EO 13593 was signed, creating Mil. R. Evid. 514 (among other changes). And, of course, the rule appears in the 2012 Manual for Courts-Martial (page 271 of the pdf).

Assuming I’m right that the Notice of Proposed Changes that was published in the Federal Register in October 2011, and discussed by me in November 2011, contains the first ever discussion of Mil. R. Evid. 514 in the Federal Register, and the first ever opportunity for public comment, I see two problems with that comment period for this new Military Rule of Evidence.

The first problem is that the publication and comment period was part of a “stylistic” amendment to the Military Rules of Evidence, meaning that the changes were not obviously substantive, and didn’t obviously encompass a brand new rule. Moreover, the Joint Service Committee Draft of the new Military Rules of Evidence (in this word document, that I linked to in my November 21 post) notes that the new Mil. R. Evid. 514 was already, at that point, in a draft EO, meaning that it was already post-comment.

The second problem is that the comment period for the October 2011 Federal Register notice closed on December 9. However, by December 13 Congress had noted that the new Mil. R. Evid. 514 “ha[d] completed all review within the Office of Management and Budget and is now with the President for review and approval.” If the rule was open to public comment until December 9, it couldn’t have been with the President by December 13.

This supports a conclusion that the public never had an opportunity to comment on Mil. R. Evid. 514 prior to its adoption. And if notice and an opportunity for public comment is required, this is problematic for anyone trying to assert the victim advocate privilege.

Department of Defense Directive 5500.17 dated May 3, 2003, details the “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice.” That directive details procedures for Public Notice and Meeting regarding amendments to the Manual for Courts-Martial, and includes this provision:

E2.4.2. It is DoD policy to encourage public participation in the JSC’s review of reference (b) [the MCM]. Notice that the Department of Defense, through the JSC, intends to propose changes to reference (b) normally shall be published in the Federal Register before submission of such changes to the President. This notice is not required when the Secretary of Defense in his sole and unreviewable discretion proposes that the President issue the change without such notice on the basis that public notice procedures, as set forth in this Directive, are unnecessary or contrary to the sound administration of military justice, or a Manual for Courts-Martial change corresponding to legislation is expeditiously required to keep reference (b) current and consistent with changes in applicable law.

E2.4.6. The JSC shall provide notice in the Federal Register and hold a public meeting during the public comment period, where interested persons shall be given a reasonable opportunity to submit views on any of the proposed changes contained in the annual review. Public proposals and comments to the JSC should include a reference to the specific provision to be changed, a rational for the proposed change, and specific and detailed proposed language to replace the current language. Incomplete submissions might be insufficient to receive the consideration desired. The JSC shall seek to consider all views presented at the public meeting as well as any written comments submitted during the 60-day period when determining the final form of any proposed amendments to reference (b).

Insofar as DoDD 5500.17 is controlling under circumstances such as these, this seems pretty straightforward.

But there is another consideration: The Administrative Procedure Act (5 U.S.C. § 500, et seq.). The APA generally requires agencies to publish notice of proposed rule making in the Federal Register (5 U.S.C. § 553(b)), but it also generally exempts “courts martial [sic] and military commissions” (5 U.S.C. § 551(1)(f)) and “a military or foreign affairs function of the United States” (5 U.S.C. § 553(a)(1)). However, there is very little caselaw interpreting these exemptions, and I can find none that alleviates the DoD’s burden to provide public notice and an opportunity to comment before the president promulgates a rule for courts-martial pursuant to his authority under Article 36 (10 U.S.C. § 836).

So, assuming that DoDD 5500.17 controls, or that the APA applies, or both, then Mil. R. Evid. 514 – the Victim Advocate Privilege – was improperly promulgated.

And if it was improperly promulgated, then it is void.

4 Responses to “Is there a Victim Advocate Privilege (Mil. R. Evid. 514)?”

  1. Chris Kennebeck says:

    I think you are spot on with most comments, and here is one possible response.  First, MRE 514 was first noticed to the public on 19 October 2011 (here: http://www.gpo.gov/fdsys/pkg/FR-2011-10-19/pdf/2011-26896.pdf).  This public meeting notice in the Federal Register does not describe the changes to the MRE as stylistic only.  It does include MRE 514.  Second, at the public meeting, not one person showed up.  Third, I don’t think there were any comments related to MRE 514 (I’ll have to check to make sure). 

    It is true that MRE 514 was added to EO 13593 after that EO had gone through its public comment period.  The rule was originally planned to be added to the currently pending EO with the rest of the MRE changes, which were MOSTLY stylistic only (although there are a few substantive changes that I believe were addressed in the comments alog the side of the WORD document of draft changes and that were addressed in the EXSUM — both of which were made public after 19 October 2011, here: http://www.dod.gov/dodgc/images/exec_summary.pdf and here: http://www.dod.gov/dodgc/images/12mcm_comments.pdf). 

    However, after Congress had proposed the creation of a statutory victim advocate privilege, the decision was made to add MRE 514 to the then-pending EO.  This sudden decision required SECDEF approval and is within the parameters of DODD 5500.17.  Granted, it is not ideal; however, a statutory rule of evidence would have been worse.  I should say that it appeared to most that the statutory privilege was supported by both the House and Senate Armed Services Committee’s, and it was believed that victim advocate privilege would be included in the FY12 NDAA.  Therefore, the decision to include MRE 514 in the 2011 EO was made to avoid having a statutoryily created rule of evidence.

    I need to find authority, but I don’t think the APA applies.  And I think DODD 5500.17 was complied with.  But MRE 514 would not be the firt rule to be challenged.  The President’s rule-making authority is not unlimited, and he cannot do what Congress was meant to do.  But I do think Congress meant to allow POTUS to create and amend rules of evidence, and I do believe that public comment requirements can be, from time to time and under circumstances that might harm “the sound administration” of military justice, waived.  This is what happened here. 

    Of course, I do not speak for DoD or the JSC, but I think the explanation above contains most responses one might hear if they were to formally challenge MRE 514 – and I am sure such a challenge will be made, whether the basis is APA, Article 36 rule-making authority, or the Constitution. 
         

  2. Eugene Fidell says:

    Notice and comment rule making, as the text quoted unfortunately makes clear, is not required by the APA for MCM changes. The requirement does appear in App. A to 32 CFR pt. 152, but merely as a matter of DoD policy and can be dispensed with in the Secretary’s “sole and unreviewable discretion.” Was that power intentionally exercised here, or was this just an oversight given the back-and-forth between legislative and executive fix processes? I imagine the latter. That said, fine sleuthing here by Capt Spilman. The late Capt Kevin J. Barry — an indefatigable student of the JSC and its process — would have loved this.

  3. Eugene.fidell@yale.edu says:

    Chris’s helpful post must have been under review when I was drafting mine. As I read it, the Secretary exercised his power to dispense with notice-and-comment. Perhaps the memo that sent the proposal to the Secretary could be made public. 

  4. Phil Cave says:

    One of Kevin’s big issues was transparency within DoD and JSC in particular.  Compare with the way in which federal rules of procedure and evidence are made.
    I suspect in the federal civilian system there would have been a written report made public and we’d see the recommendation or decision to expedite the process.  I will say this is a good start – the website and Kennebeck’s comments.   http://www.dod.gov/dodgc/jsc_business.html 

    I did look at one for 1943, but it looks to much like some discovery packages I receive, unreadable in lots of places, but you can get the picture here and here:

    http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/CR11-1943.pdf 

    http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/CR12-1995.pdf