Congress created the Code Committee in Article 146 (10 U.S.C. § 946) and mandated that it “shall meet at least annually and shall make an annual comprehensive survey of the operation of this chapter.” The committee consists of the judges of CAAF, each service JAG and the SJA to the CMC, and two members of the public appointed by SECDEF.

It met on March 5, 2013, the meeting was open to the public, and I had the opportunity to attend. I’ve been carrying around my notes since then, but am taking some time this weekend to catch up on a number of projects and want to share my notes with you.

The meeting began with an extensive brief from the Joint Services Committee. The brief followed a handout that I’ve uploaded here (~2 MB PDF). My notes include:

  1. Discussion of changing the standard in MRE 505 to incorporate the involvement of a knowledgeable U.S. official (bringing the MRE in line with language used in the Military Commission Rules of Evidence).
  2. Discussion of a rewrite of MRE 412 to incorporate CAAF’s opinions in Gaddis and Ellerbrock. Apparently, the JSC drafted a “legally-accurate” rewrite that was rejected by the National Security Council because it didn’t do enough to protect the privacy rights of an alleged victim.
  3. A reminder that the MRE will automatically incorporate the recent changes to the Federal Rules of Evidence on June 1, 2013.
  4. Discussion of the question of the maximum authorized punishment for Article 120 (2012), considering the lack of an Executive Order establishing a maximum. My notes include this: “No punishment?”
  5. The JSC has proposed (or is considering proposing) an a new enumerated offense under Art. 134 for indecent conduct (returning to the pre-2007 status quo for this offense). Judge Ryan wondered if Congress didn’t preclude this offense by an express omission from the newest iteration of Art. 120.
  6. Discussion of a House Armed Services Committee letter to the JSC expressing concern that the military is “woefully inadequate” in prosecuting sexual assault cases when compared to out civilian counterparts. There’s both a JSC study and a NDAA-appointed panel looking at this issue (my notes include “sexual assault comparative study group; 4-month,” but I’m not sure if this is the JSC study or the NDAA panel).
  7. Someone in Congress wants an enumerated hazing offense (I feel like we covered this in a recent post, but can’t find it). JSC opposes (note page 9 of the JSC handout linked above).
  8. Concern about restricted reports of sexual assault allegations, specifically in the context of a failure of government officials to preserve potentially-exculpatory evidence when a restricted report eventually leads to a criminal prosecution.

A good deal more was discussed and the handout is pretty self-explanatory. Check it out.

The JAGs then all took a turn. My notes include:

  1. The AF JAG announced that the AFCCA is getting additional judges to help with the backlog.
  2. The Navy JAG announced a new program for new Navy judge advocates: Their first two years on active duty will consist of four 6-month tours in the various practice areas. My notes include, in big block-type, “no detailed cases during this.” It seems that joining the Navy in order to get into the courtroom right out of law school is no longer an option…
  3. The Army JAG talked a lot about training, which prompted a question about equality of training opportunities between the prosecution and defense functions. He replied that all training is job neutral.
  4. The SJA to the CMC discussed the growth of the Marine Corps judge advocate community, from 435 active duty officers to 569 over the course of two years. He also described last year’s reorganization as designed to “get the right counsel on the right case with the right experience.”

Apologies to the Coast Guard, as I failed to take notes during the CG JAG’s comments.

Then Major General Charles J. Dunlap, Jr., USAF (Ret.), a civilian member of the committee, got a turn. He also submitted a letter to the committee, which I have uploaded here. The committee then adjourned.

Update: A reader provides a clean copy of MajGen Dunlap’s letter (which includes numerous hyperlinks) and the attachments. It’s uploaded here. Thank you!

I’d never been to CAAF before this, and I had a chance to meet some of the extraordinary people who work there and at the JSC. The meeting was incredibly informative. Unfortunately, it was sparsely attended by non-participants, likely because of the cancellation of CAAF’s judicial conference that was scheduled for the following two days. Or maybe it’s because our planned happy hour was also cancelled. But it was worth the trip and I can already recommend that anyone interested in military justice attend next year’s meeting.

9 Responses to “Notes from the 2013 Code Committee Meeting”

  1. N says:

    Maybe the Navy JAGC can start recruiting on the basis of having snazzy uniforms? “We won’t trust you for your first two years” doesn’t have a great ring to it.

  2. A lone ADC says:

    Are the attachments to prof dunlap’s letter available?

  3. Zachary Spilman says:

    Unfortunately, I didn’t take a copy of the attachments. But we discussed attachment 3 here (and there’s a link to the letter).

  4. CS says:

    Did they discuss MJ only sentencing?
    Did Col Christensen elaborate on these 15 SA cases prosecuted by the AF after civilian authorities declined prosecution?

  5. k fischer says:

    Page 12 of the handout says that victim’s privacy rights do not trump the accused Constitutional rights.  I found the recognition of that concept comforting in today’s environment regarding sexual assault prosecutions by the military.
    However, the re-draft challenge to MRE 412 to account for Gaddis and Ellerbrock, is to re-write 412 in such a way that victims’ advocates won’t think that the complaining witness’s privacy is being reduced. So, we can’t rewrite 412 to codify Ellerbrock and say that the privacy rights of a complaining witness will never trump the constitutional rights of the accused because of what the victims advocates might think?  In other words, we cannot pass clarify a law in order to prevent an accused’s constitutional right to confront his witness from being trampled because of what the victims advocates might think? Anybody else have a problem with this?

  6. USMC DC says:

    I would be much more sympathetic to the idea of MJ sentencing if we get the rest of our system “in line” with the Federal courts, e.g. twelve person juries and unanimous verdicts. Until then I think it adequately balances the equities to allow for members sentencing, and keeps in mind the goals of a miltary justice system – good order and discipline. I think it would be entertaining to see the Gov’t try to produce 12 impartial jurors for trial without shutting a unit down completely.

  7. stewie says:

    Given that the unit usually gets somewhere around 6 or more per trial already, I’d think you’d only have to roughly double your panel selectees to get to 12 per trial.
    Not exceedingly easy, but not likely to shut down units either.

  8. stewie says:

    government, not unit.

  9. k fischer says:

    Here is a link to an interesting AF Article regarding Col Christensen’s take on the dismissal in the Aviano case:
    I like his initial gut response when he got the e-mail regarding the dismissal.