This is part one of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.
The National Defense Authorization Act for Fiscal Year 2014 is a big piece of legislation. Contained within the 1,106 page bill are 38 sections addressing a variety of military justice issues. I’ve excerpted all 38 of these sections into a document with a table of contents (Word version available here) (PDF version available here).
From these 38 military justice sections I’ve identified the most important 15. They are: The eight sections that make ten changes to the UCMJ (two sections each make two changes), and five other sections that will significantly impact court-martial prosecutions.
The ten changes to the Code are:
§ 531. Modification of eligibility for appointment as Judge on the United States Court of Appeals for the Armed Forces.
§ 1701. Extension of crime victims’ rights to victims of offenses under the Uniform Code of Military Justice.
§ 1702(a). Revision of Article 32 (Use of Preliminary Hearings).
§ 1702(b). Revision of Article 60(c) (Elimination of Unlimited Command Prerogative and Discretion).
§ 1703. Elimination of five-year statute of limitations on trial by court-martial for additional offenses involving sex-related crimes.
§ 1704. Defense counsel interview of victim of an alleged sex-related offense in presence of trial counsel, counsel for the victim, or a Sexual Assault Victim Advocate.
§ 1705(a). Discharge or dismissal for certain sex-related offenses.
§ 1705(b). Trial of such offenses by general courts-martial.
§ 1706. Participation by victim in clemency phase of courts-martial process.
§ 1707. Repeal of the offense of consensual sodomy under the Uniform Code of Military Justice.
Of these ten sections and subsections, four do not take effect until the future. These are:
- The new Art. 32 (effective Dec. 27, 2014);
- The new Art. 60(c) (effective Jun. 24, 2014);
- The mandatory minimums for sex offenses (effective Jun. 24, 2014); and
- The requirement for trial by general court-martial for the sex offenses with mandatory minimums (effective Jun. 24, 2014).
I’ve updated our Word document version of the UCMJ to include all of the new Code provisions (there are annotations for the provisions effective in the future). I’ve also significantly reformatted the document and added a linked table of contents.
The other five sections likely to have significant impact on court-martial prosecutions are:
§ 1708. Modification of Manual for Courts-Martial to eliminate factor relating to character and military service of the accused in rule on initial disposition of offenses.
§ 1716. Designation and availability of Special Victims’ Counsel for victims of sex-related offenses.
§ 1744. Review of decisions not to refer charges of certain sex-related offenses for trial by court-martial.
§ 1752. Sense of Congress on disposition of charges involving certain sexual misconduct offenses under the Uniform Code of Military Justice through courts-martial.
§ 1753. Sense of Congress on the discharge in lieu of court-martial of members of the Armed Forces who commit sex-related offenses.
Over the rest of this week I will discuss all 15 of these provisions in this series of posts, as follows:
- Part 1: Overview (this post). CAAF eligibility change (§531).
- Part 2: Preferral-stage changes. Victims rights (§1701), SVC statute (§1716), statute of limitations (§1703), mandatory minimums (§1705(a) and (b)), repeal of consensual sodomy (§1707), and initial disposition factors (§1708).
- Part 3: Discovery. Changes to Art. 46 (§1704).
- Part 4: Article 32. The new Art. 32 (§1702(a)), review of decisions not to refer sex-related offenses to trial (§1744), and sense of Congress provisions (§1752 and §1753).
- Part 5: Post-trial matters. The new Art 60(c) (§1702(b)) and Article 60(d) ((§1706).
- Part 6: Practice notes. Thoughts on how these new provisions will affect pretrial negotiations, trial practice, and post-trial actions.
Below is a discussion of the first change to the Code: The CAAF eligibility change.
This provision is particularly interesting for this blog, as it responds to a 2012 post that discussed Article 142′s unwise limitations on the President’s discretion to pick the best possible CAAF judges, and a 2009 post entitled Let’s honor Chief Judge Baum’s memory by repealing Article 142(b)(4). Congress doesn’t repeal Article 142(b)(4) entirely, but it does make fundamental change. The old language read:
(4) For purposes of appointment of judges to the court, a person retired from the armed forces after 20 or more years of active service (whether or not such person is on the retired list) shall not be considered to be in civilian life.
The new language reads:
(4) A person may not be appointed as a judge of the court within seven years after retirement from active duty as a commissioned officer of a regular component of an armed force.
While there are no current CAAF vacancies, this expansion of eligibility creates a new pool of otherwise highly-qualified candidates for CAAF whose military experience is no longer a disqualifying factor. But the seven year cooling-off requirement gives us a reason to consider why a civilian CAAF is important.
During the early Congressional consideration of the UCMJ, the need for an independent CAAF (formerly called the Court of Military Appeals) was clearly understood. A 1949 report by the House Armed Services Committee included this discussion:
Article 67 contains the most revolutionary changes which have ever been incorporated in our military law. Under existing law all appellate review is conducted solely within the military departments. This has resulted in widespread criticism by the general public, who, with or without cause, look with suspicion upon all things military and particularly on matters involving military justice. Every Member of Congress, both present and past, is well aware of the validity of this statement. The original bill provided for the establishment of a judicial council to be composed of at least three members. In view of the fact that this is to be a judicial tribunal and to be the court of last resort for court-martial cases, except for the constitutional right of habeas corpus, we concluded that it should be designated by a more appropriate name .. . . a civilian court of military appeals, completely removed from all military influence or persuasion.
Report to accompany H.R. 4080 at 6-7 (April 28, 1949) (link). Article142(b)(1) still requires that “each judge of the court shall be appointed from civilian life…,” and this seven year cooling-off period ensures that this requirement isn’t undermined by too rapid a transition from a full active duty career to the civilian Court of Appeals for the Armed Forces.