This is part four 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.
Section 1702(a) of the NDAA rewrites Article 32 of the UCMJ. The changes aren’t effective until one year after enactment, but they eliminate the century-old requirement of a “thorough and impartial investigation” of charges before trial, and the similarly ancient guarantee that an accused can present to the investigator anything he wishes in his own defense.
Paragraph 76 of the 1918 version of the Manual for Courts-Martial (link) required an investigation for any charge forwarded past the summary court-martial level, and explicitly guaranteed “the accused an opportunity to make any statement, offer any evidence, or present any matter in extenuation that he may desire to have considered in connection with the accusation against him.” This guarantee was enacted into Article 70 of the Articles of War in 1920 (link), along with the specific requirement that the investigation be “thorough and impartial.” And this early requirement for a pretrial investigation was considered by the Supreme Court in Humphrey v. Smith, 336 U.S. 695 (1949), where a divided Court determined that it was “important,” but not jurisdictional.
When the UCMJ was enacted in 1950, Article 32 incorporated both the requirement of a “thorough and impartial investigation” and the right of an accused “to present anything he may desire in his own behalf,” along with making the process “binding” but not jurisdictional. The scope of the investigation included, but notably was not limited to, “inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.”
This language was left untouched for more than 60 years, but the revision contained in Section 1702(a) of the FY14 NDAA will, when effective, eliminate it entirely. Beginning on December 27, 2014, there will be no more pretrial investigations.
Instead, there will be “preliminary hearings,” with specific limitations:
(2) The purpose of the preliminary hearing shall be limited to the following:
(A) Determining whether there is probable cause to believe an offense has been committed and the accused committed the offense.
(B) Determining whether the convening authority has court-martial jurisdiction over the offense and the accused.
(C) Considering the form of charges.
(D) Recommending the disposition that should be made of the case.
(emphasis added). Moreover, the accused may no longer “present anything he may desire.” Rather, the future Article 32(d) states:
(2) The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in paragraph (4) and subsection (a)(2).
(4) The presentation of evidence and examination (including cross-examination) of witnesses at a preliminary hearing shall be limited to the matters relevant to the limited purposes of the hearing, as provided in subsection (a)(2).
(emphases added). Additionally, a “victim” (defined in part as someone who “is named in one of the specifications”) will not be required to testify at the hearing. But the hearing will be recorded, and the victim “may request the recording and shall have access to the recording as prescribed by the Manual for Courts-Martial.”
The wisdom of the future rule is debatable, and there’s reason to believe that even Congress doesn’t quite understand what it’s done. For instance, describing this provision to the United States Senate on December 9, 2013, Senator Carl Levin (D-MI), said (link to transcript) that it will “make the Article 32 process more like a grand jury proceeding.”
But it will do nothing of the sort. A federal grand jury is both “grand,” consisting of at least 16 people, and a “jury,” chosen at random from the community. In contrast, both the current and the future versions of Article 32 require a hearing conducted by only one officer, and that officer is appointed by the commander responsible for the prosecution. Article 32 proceedings are also open to the public and the press, while grand juries are protected by secrecy rules that preserve the independence of their investigative function. And the victim who will be allowed to refuse to participate in an Article 32 proceeding could never do so when served with a grand jury subpoena.
As mentioned above, the future Article 32 isn’t effective until one year after enactment, so there’s plenty of time for further examination. But two other provisions in the NDAA that can impact an Article 32 proceeding are effective immediately. They are the requirement for review of decisions not to refer sex-related offenses to trial (§1744), and the sense of Congress provisions (§1752 and §1753).
In Section 1744 of the bill, Congress mandates:
IN GENERAL- The Secretary of Defense shall require the Secretaries of the military departments to provide for review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense.
This review is required for charges of attempted or completed rape (Art. 120(a)), sexual assault (Art. 120(b)), or forcible sodomy (Art. 125). Additional requirements on the nature of the review are established in the legislation, but the offense-specific limitation adds an interesting twist. On its face, the review only applies to preferred charges not referred for trial. So, prosecutorial overreaching at the charging stage to prefer one of these sex-related offenses will add significant bureaucracy if the charge is not referred to trial. However, prosecutorial restraint at the charging stage, coupled with an aggressive presentation at the Article 32 stage (where uncharged offenses may be considered under both the current and the future rules), will avoid the review requirement if the evidence doesn’t support the uncharged sex-related offense. Whether military prosecutors will recognize the advantages of such restraint remains to be seen.
Congress also passed two “Sense of Congress” provisions, Sections 1752 and 1753. These provisions state Congressional preference for trial by court-martial, rather than nonjudicial punishment or administrative action (including discharge in lieu of trial), in the case of attempted or completed rape (Art. 120(a)), sexual assault (Art. 120(b)), or forcible sodomy (Art. 125). These provisions are also offense-specific, meaning that a prosecutor’s restraint at the beginning of a case can prevent Congressional wrath at the end.