Congress revised Article 32 in the FY14 NDAA, eliminating the longstanding practice of a thorough pretrial investigation of charges prior to referral to a general court-martial, and replacing it with a more limited preliminary hearing. I analyzed the new statute shortly after it was enacted, in this post. The statute was slightly modified in the FY15 NDAA, making it effective for all hearings conducted on or after December 26, 2014 (discussed here).

Even though the new statute is in effect, the Manual for Courts-Martial has not been revised (though the JSC has proposed revisions, discussed here and here). In particular, R.C.M. 405 details the procedure for an Article 32 pretrial investigation, and it has not been modified to reflect the new statutory framework of a preliminary hearing. The Manual is promulgated under the President’s rulemaking authority contained in Article 36, and it is controlling for all of the services.

Nevertheless, two service secretaries have issued implementation guidance for Article 32 preliminary hearings. The Navy was first, with ALNAV 086/14 (“New Article 32, UCMJ, Preliminary Hearing Procedures”), issued on December 22, 2104. The Army recently followed suit, with Army Directive 2015-09 (“Implementation of Section 1702 of the National Defense Authorization Act for Fiscal Year 2014-Article 32, Uniform Code of Military Justice Preliminary Hearing”), issued on February 24, 2015. Update: A reader passed along the AFLOA/JAJM Article 32 Preliminary Hearing Officer’s Guide dated December 23, 2014, which contains similar guidance for the Air Force (though not from the Secretarial level).

These issuances generally conform to the new statutory language of Article 32, and they are in some ways inconsistent with the existing R.C.M. 405. For example, both of the issuances allow a Preliminary Hearing Officer to consider “other evidence, in addition to or in lieu of witness testimony. . . ” ¶ 3.(i)(3)(B), ALNAV 086/14; ¶ 10.c.(2), Encl. 1, ARMY DIR 2015-09. However, R.C.M. 405(g)(4) limits the ability to consider alternatives to testimony, and R.C.M. 405(g)(5) limits the ability to consider alternatives to evidence.

I think that the authority of a Service Secretary to issue substantive rules that are contrary to the Rules for Courts-Martial is dubious, and I note that “if an accused is deprived of a substantial pretrial right on timely objection, he is entitled to judicial enforcement of his right, without regard to whether such enforcement will benefit him at the trial.” United States v. Murray, 25 M.J. 445, 447 (C.M.A. 1988) (quoting United States v. Ragan, 33 C.M.R. 331, 336 (C.M.A. 1963) (quoting United States v. Mickel, 26 C.M.R. 104, 107 (C.M.A. 1958))). It will be interesting to see how the appellate courts address any objections to the ALNAV and the ARMY DIR.

47 Responses to “Service Secretaries issue implementation guidance for Article 32 preliminary hearings”

  1. (Former) ArmyTC says:

    I think there is an argument that the current 405 is moot. The rule was based on a statute that has now been entirely superseded, why enforce it? The intent of Congress is that the old framework be entirely discarded, Congress amended the statute, the old rule is based on the old statute, therefore the rule is moot. 
    Thoughts?

  2. The Silver Fox says:

    Totally agree.  Don’t forget the President signed the NDAA.  Any previous EO, like R.C.M. 405, that conflicts with a statute enacted later in time would seem to be abrogated.  Especially when R.C.M. 405 is titled “pretrial investigation”–by statute, pretrial investigations no longer exist. 

  3. stewie says:

    What authority do service secretaries have to issue court-martial procedural rules?
     
    Even if this argument that 405 is moot, which I don’t agree with, where do the service secretaries get the power to promulgate procedural court-martial rules.  Congress delegated that to the President last time I checked.  Where Article 32 overrides 405, it obviously is mooted, but what about where it does not?  Shouldn’t the proper analysis be that 405 survives where it is not overridden by Article 32?

  4. DCGoneGalt says:

    I’m with Stewie on wondering how service secretaries (or in the AF TJAG/AFLOA) have the authority to issue RCMs.  However, I agree with Silver Fox on the point that now that the NDAA is law it would seem necessary to remove those portions of RCM 405 that are in direct conflict with the NDAA and replace them with the NDAA provision. 
     
    I know some preliminary hearing officers have applied the RCM 405 rather the interim rule and imagine there is some list-keeping going on as to which hearing officers/military judges are not toeing the line.

  5. The Silver Fox says:

    I don’t think portions of R.C.M. 405 can be severed, but I haven’t done the research.  Maybe the most analogous caselaw could be found where a statute invalidates portions of an administrative regulatory scheme.  I tend to agree with you though, Stewie, WRT the service secretary argument.  It reminds me of the Jansen case in some ways…

  6. Zachary D Spilman says:

    There are portions of R.C.M. 405 that are not inconsistent with the new language of Article 32 (such as the limits on alternatives to testimony and evidence). Are these sections now mere surplussage?

    Congress said nothing about R.C.M. 405 in the FY14 (or FY15) NDAA. Did that repeal the RCM by implication?

    The President said nothing about R.C.M. 405 when signing the FY14 (or FY15) NDAA. Further, the President exercised his Article 36 rulemaking authority in E.O. 13669 on June 13, 2014 (discussed here) – long after the new Article 32 was enacted – to make changes to R.C.M. 405 that implemented the subpoena power and applied M.R.E. 412. Did the President modify a nonexistent RCM?

  7. The Silver Fox says:

    Wasn’t the 2015 NDAA signed on 19 December 2014?  That’s what changed Art. 32, no?

  8. DCGoneGalt says:

    Silver Fox:  If I was a hearing officer, I would ask the convening authority to show me where the authority for the service rule is.  If that could not be done then I would state my intention  to TC/DC to apply RCM 405 with the recently enacted NDAA changes substituted for those provisions of RCM 405 that were changed.  If that was unsatisfactory to either party of the convening authority, then they can find another hearing officer because my report would turn into a legal review of whether the service secretaries have the authority to issue RCMs and whether the Art 32 hearing that I presided over was valid.  If the research led me to a negative on that question then I would recommend against referral and in favor of a new Art 32. 
     
    I fully understand that being such a pain in the a$$ would likely result in never being asked to be a hearing officer again.  Which could end up being a reward in and of itself.

  9. DCGoneGalt says:

    Mr. Spilman:  I’m wondering the same thing Silver Fox is.   I understand that RCM 405 is only partly in conflict with the NDAA but the 15NDAA is what created the changes, no?

  10. afjagcapt says:

    @Silver Fox and DCGoneGalt: The PH structure was created by the FY14 NDAA signed at the end of 2013; it was modified slightly and, more significantly, ordered into immediate effect for all 32s from 26 Dec 14 on irrespective of date of offense (as opposed to the FY14 NDAA direction that it be for offenses occurring on or after 26 Dec 14). 

  11. afjagcapt says:

    …it was modified slightly and, more significantly, ordered into immediate effect for all 32s from 26 Dec 14 on irrespective of date of offense (as opposed to the FY14 NDAA direction that it be for offenses occurring on or after 26 Dec 14).

    Should have said, “modified slightly and, more significantly, ordered into immediate effect by the FY15 NDAA

  12. Zachary D Spilman says:

    DCGoneGalt and The Silver Fox: I suggest that you read the first paragraph of this post and the posts referenced in that paragraph. Article 32 was revised in the FY14 NDAA signed into law by the President on December 26, 2013.

  13. The Silver Fox says:

    That’s right, afjagcapt.  I don’t see how that changes the analysis of whether R.C.M. 405 has been superseded if the intent all along (under both 14 and 15 NDAA) was to implement the changes post-26 December 2014.

  14. Dwight Sullivan says:

    [Standard disclaimer:  these thoughts are offered in my personal capacity and should not be imputed to DoD or anyone or anything else]:
    1.  The version of R.C.M. 405 that is in the 2012 MCM concerns “pretrial investigation[s].”  There is no longer any such thing.
    2.  The President has not yet prescribed a replacement R.C.M. 405 dealing with “preliminary hearings.”  Hence, there is a vacuum.  CMA has expressly recognized the authority of the Services to fill such vacuums.  United States v. Vara, 8 C.M.A. 651, 654, 25 C.M.R. 155, 158 (1958) (“While rules of procedure for military courts are prescribed by the President, there is a void in this field which should be filled.  The Services could correct the deficiency by appropriate regulations . . . .”).  (h/t USMC TCAP)
    3.  Regarding the question of whether the President amended a nonexistent RCM in Executive Order No. 13669 on June 13, 2014, the answer is clearly no.  At the time, none of the NDAA for FY 2014’s changes to Article 32 had taken effect.  Rather, the law provided that those statutory amendments would apply only to Article 32s conducted for offenses occurring on or after December 26, 2014.  So the revised rules would apply to ALL Article 32s conducted between June 13, 2014 and December 26, 2014 and to a great number of Article 32s thereafter.  The NDAA for FY 2015 later amended the implementation date for the Article 32 reform to apply to all 32s occurring on or after December 26, 2014 rather than to those for offenses occurring on or after that date.  But the President had no way to know that change would occur when he issued Executive Order No. 13669 in June 2014.  Accordingly, it made sense for the President to make any appropriate revisions to the then-extant R.C.M. 405 notwithstanding those changes’ inapplicability to Article 32 preliminary hearings conducted pursuant to section 1702 of the NDAA for FY 2014.

  15. Zachary D Spilman says:

    While I acknowledge that the NDAA replaced the term “pretrial investigation” with “preliminary hearing,” I find it unlikely that Congress and the President thereby repealed all of R.C.M. 405 (and the wealth of interpretive precedent) sub silentio. Certainly, if the President intended the changes to R.C.M. 405 in E.O. 13669 of June 13, 2014, to apply only to hearings conducted under the prior Article 32, he could have said so.

    Vara may have recognized a Service Secretary’s ability to fill a vacuum, but here we have an existing R.C.M. 405 with many provisions that are consistent with the current Article 32. Moreover, insofar as the Secretarial regulations conflict with the Presidentially-prescribed Rule, I don’t see how they’re “appropriate regulations” as contemplated by Vara. For instance, what authority does a Service Secretary have to change the rules regarding consideration of alternatives to testimony and evidence?

    It’s unclear why the President has not promulgated a new R.C.M. 405. Perhaps he’s happy with the current rule and thinks it should be followed to the greatest extent possible. Or maybe he’s just been too busy with other activities. Whatever the reason, that failure does not confer authority upon a Service Secretary to promulgate contradictory regulations.

  16. Blanco Llama says:

    The Army guidance is vague. The “required disclosures” only include what accompanies the charge sheet and what is used for the preferral decision. The defense counsel receives “notice of” and “reasonable access to”  evidence that “negates or reduces the degree of guilt.”
    So if a PHO wants to read the entire CID file to determine what witnesses and evidence to present at the hearing, can he? Is the difference between a PHO and an IO any control over what evidence is presented (until objection or request for production)? Is the PHO limited to just the limited required disclosures. What is to stop every 120 case from being just a charge sheet and victim statement? Discovery is dead, but this process also appears to be less than a bulwark against baseless charges.
    Why not just say disclose entire CID/MPI/law enforcement file as it exists at the time of the hearing? Instead we’re going to have arguments the 32 was invalid because young TCs did not provide “notice of” something that “negates or reduces the degree of guilt.” How can the Defense Counsel request witnesses and evidence, if he has only what little paper accompanied the charges? How can the PHO decide on these issues without looking at the law enforcement files? Proffers?
    As much as TCs complain about Article 32s, they get more out of it then the defense more often then not. Now they’re going to find out the flaws in their cases on the day of trial.

  17. Dwight Sullivan says:

    [Standard disclaimer:  What I say here is on behalf of myself alone and should not be imputed to DoD or anyone or anything else.]
    1.  Section 1702 of the NDAA for FY 2014 entirely rewrote Article 32 and changed the name of the procedure, the scope of the procedure, the name of the individual presiding over it, and the qualifications of individuals presiding over it.  It didn’t make revisions to Article 32 as it previously existed; it entirely supplanted it.  Even without regard to the context, which would support the conclusion that Congress intended to scrap the old Article 32 investigation and replace it with a new preliminary hearing, the plain text of the statute indicates that Congress meant to displace R.C.M. 405, which deals with “pretrial investigations,” not “pretrial hearings” — a difference which Congress regarded as far more than semantic.
    2.  Congress didn’t repeal R.C.M. 405.  Rather, it indicated an endpoint for its use (an endpoint that the NDAA for FY 2015 changed; before that change, the old R.C.M. 405 rules would be used indefinitely).
    3.  There is no conflict between the regs issued by the Service Secretaries and an R.C.M. issued by the President because there is no presidentially prescribed rule for the procedures in Article 32 pretrial hearings.  No provision in R.C.M. 405 is consistent with the current Article 32, because no provision in R.C.M. 405 speaks to preliminary hearings.  Take, just for example, R.C.M. 405(g)(2).  It says, “The investigating officer shall make an initial determination whether a military witness is reasonably available.”  That rule can’t be carried out in the current system because there is no such thing as an investigating officer.  An argument that R.C.M. 405 continues to apply the rules REQUIRES applying it in in a manner not supported by its plain language.  No statute or rule says that the preliminary hearing officer should be treated as an IO.  Or consider alternatives to testimony.  R.C.M. 405(g)(4) says, “Unless the defense objects, an investigating officer may consider, regardless of the availability of the witness . . . .”  Again, there is no investigating officer to consider anything.  Accordingly, nothing in the Service Secretaries’ regulations addressing how preliminary hearing officers should handle alternatives to testimony at a preliminary hearing can conflict with a rule discussing how investigating officers should consider alternatives to testimony at pretrial investigations.
    4.  There would be no reason for the President to indicate that a change to R.C.M. 405 applied only to rules for the pre-amended Article 32 because ALL of R.C.M. 405 applies only to the pre-amended Article 32.  In fact, if he had indicated that in his June 2014 EO, he would have risked creating an expressio unius est exclusio alterius argument that he intended the rest of R.C.M. 405 to survive the change.  Thus, NOT including such a caveat would be consistent with the view that the entirety of R.C.M. 405 doesn’t apply to Article 32 pretrial hearings conducted pursuant to Section 1702 of the NDAA for FY 2014 – a view that is supported by a plain language comparison of the rule and the statute.
     

  18. The Silver Fox says:

    Concur, Mr. Sullivan.

  19. stewie says:

    So we have RCM 405, promulgated by the President.  We have Article 32.  We have Article 36 which says, President you get to make rules, just make sure they don’t conflict with statutory law.
     
    I’m highly unconvinced that merely saying preliminary hearing instead of pretrial investigations means 405 goes away.  It seems clear to me you conduct an analysis, and you see where current 405 conflicts with Article 32, and where it does not.  Where it does, then obviously it goes away.  Where it does not, why does it go away?  The President hasn’t rescinded it, he has the delegated power to promulgate it, and as long as it does not conflict with the current statute, it should absolutely remain.
     
    So, who’s done the analysis to say what parts of 405 conflict with Article 32?  E.G., clearly discovery as a purpose does…but alternatives to testimony and evidence do not since Article 32 says very little about that.  Put more succinctly, there’s a lot in the new Article 32 that maintains the old ways and there’s a lot it is absolutely silent on wrt the old ways.  Also, RCM 405 is written pretty broadly, and addresses a lot of procedural rules not inconsistent with even the current article 32.
     
    Finally, the Army Directive at least directly CITES to RCM 405 in at least one place. Kinda hard to cite to something as authority while arguing it no longer exists.

  20. RY says:

    I also do not agree RCM 405 is moot.  While Congress revised Art 32, they did not do away with it.  It remains a pretrial hearing to recommend whether charges should proceed whether you call it an investigation or something else.  Just because the AF Drug Testing Lab changed their “Litigation Reports” to “Drug Testing Reports” did not change the purpose.  The barometer is still Art 36, which permits POTUS to promulgate rules not inconsistent with statutes.  If Congress changed GCMs, called them Super Serious Felony Courts instead to be presided over by Almight Robe Wearers and required unanimous verdicts, would that somehow render all of the rules for GCMs moot because the name is different and it no longer has a “judge” even if the role is the same?  
     
    WRT to the argument that Art 32 refers to an investigating officer and such a person does not exist, this is reminiscent of the argument about how MRE 412 applied.  JAJG and SVCs argued it did not apply to Art 32s because MRE 412 refers to a judge and there is no judge in an Art 32.  Nevertheless, I lost track of how many judges disagreed and applied MRE 412 to Art 32 hearings before the rules were changed.  Whatever the name, the person stands in the same position to make determinations about evidence and write a report recommending the disposition.
     
    WRT to AF…the Art 32 guide is not secretarial so if RCM 405 did not apply, then what standard is there for these hearings?  Moreover, what about the retroactive change of a procedural process without fair notice of how that process will be carried out?  Is that really a good argument?

  21. Dwight Sullivan says:

    [Standard disclaimer:  What I say here is on behalf of myself alone and should not be imputed to DoD or anyone or anything else.]
    Congress did not merely rename Article 32 investigations.  It literally replaced Article 32 in its entirety, including changing its statutory purpose.
    R.C.M. 405, which is titled “Pretrial investigation,” begins by saying, “(a)  In general.  Except as provided in subsection (k) of this rule, no charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made in substantial compliance with this rule.”  That “general” statement conflicts with current law because Congress specifically and intentionally changed the prerequisites for trial by general court-martial.
    R.C.M. 405(g)(4) discusses the alternatives to testimony that “an investigating officer” may consider.  A literal reading of R.C.M. 405 — and we normally construe the law literally — tells us nothing about the alternatives to evidence that a preliminary hearing officer can consider.  So to apply R.C.M. 405(g)(4) requires applying it in a manner inconsistent with what it clearly says.  It requires reading “investigating officer” to mean “preliminary hearing officer” — something that on its face it does not say.  Who can authorize the term to be read in that manner?  The President can, but has not.  That leaves a void.  Vara expressly authorizes the Service Secretaries to fill that void.  They have done so.  Had they wished, they could have written that 405 remains in force, substituting “preliminary hearing officer” for “investigating officer” and “preliminary hearing” for “pretrial investigation” except to the extent that doing so would violate Article 32 as enacted by Section 1702 of the NDAA for FY 2014.  But they did not.  Some of the commentators on this blog who have R.C.M. 405 interpreted in that manner.  But judges in our system aren’t given the authority to adopt pretrial procedural rules.  Rather, that responsibility falls on the President and, absent presidential action, case law gives authority to do so to the Service Secretaries. 
    RY uses the interesting phrase, “Just because the AF Drug Testing Lab changed their ‘Litigation Reports’ to ‘Drug Testing Reports’ did not change the purpose.”  Here, however, Congress expressly changed the purpose of the procedures authorized by Article 32.  See National Defense Authorization Act for Fiscal Year 2014, Sec. 1702 (codified at 10 U.S.C. 832(a)(2)) (“The purpose of the preliminary hearing shall be limited to the following . . . .”)  A limited preliminary hearing is a different thing than “a thorough an impartial investigation of all the matters set forth therein.”  The rules for the latter don’t tell us how to conduct the former.  The President has not purported to speak to the former, thereby allowing the Service Secretaries to do so.

  22. DCGoneGalt says:

    Mr. Sullivan:  Unlike Silver Fox I am not tracking, I get your point but disagree.  IMO, changing the nature of the investigation/hearing does not render RCM 405 moot.  Is there any caselaw that applies to a situation where an active RCM exists but is only partially changed by later changes to an NDAA prior to the issuance of a new RCM?  That is what we have here.  And, RY raises a great point that the AF does not have Secretarial guidance.  The AF has just come out out with a Guide that says “do it this way”.
     
    While I am by no means a military justice lifer and am admittedly biased in that I see this as yet another poorly executed change in policy in an attempt to rid the system of pesky cross-examinations and non-referral recommendations at the Art 32 level, I honestly think this is a recipe for yet another appellate disaster (especially in the AF).

  23. Zachary D Spilman says:

    Well, assuming there is a vacuum in this area, I don’t agree that Vara can be read so broadly as to expressly authorize a Service Secretary to create substantive military law (and even if it could, I don’t agree that CMA had the authority to grant such authorization).

    Vara was one of a series of cases leading up to the Goode rule that required service of a post-trial recommendation from a SJA on the defense. I discussed this line of cases in my article published last year: Zachary D Spilman, Not Helping: How Congressional Tinkering Harms Victims During the Post-Trial Phase of a Court-Martial, 114 COLUM. L. REV. SIDEBAR 70, 74-76 (2014).

    In Vara (decided nearly 60 years ago), the CMA stated that:

    [I]f new matters are being introduced into the record prior to the time it reaches the convening authority, just and fair administration ought to permit objections, if any, to be lodged against them. While rules of procedure for military courts are prescribed by the President, there is a void in this field which should be filled. The Services could correct the deficiency by appropriate regulations, while the only method available to us is to set aside a sentence when the accused has been prejudiced. Therefore, to improve the administration of military justice, to avoid unnecessary reversals, and to bring some semblance of orderly procedure out of what appears to be a rather obscure method of operation, we suggest that a practice of serving a copy of the review, or those parts which contain matters of fact adverse to an accused, on the accused or his counsel sometime prior to action by the convening authority be adopted.

    25 C.M.R. 158 (emphases added). This is rather soft language for an express grant of authority.

    Moreover, even if such authority was granted, it was never used, as seventeen years later the CMA imposed the suggested rule itself:

    [I]t is ordered that on and after May 15, 1975, a copy of the written review required by Article 61 or 65(b), UCMJ, 10 U.S.C. s 861 or 865(b) , be served on counsel for the accused with an opportunity to correct or challenge any matter he deems erroneous, inadequate or misleading, or on which he otherwise wishes to comment. Proof of such service, together with any such correction, challenge or comment which counsel may make, shall be made a part of the record of proceedings. The failure of counsel for the accused to take advantage of this opportunity within 5 days of said service upon him will normally be deemed a waiver of any error in the review.

    United States v. Goode, 1 M.J. 3, 7 (C.M.A. 1975). Congress subsequently amended Article 60 to include this requirement in the Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393 (1983).

    One might wonder why the Service Secretaries didn’t promulgate rules for service of the SJA’s post-trial recommendation after Vara that would have saved the CMA from having to declare a rule for it in Goode and avoided the need for legislative action. Perhaps it’s because the Secretaries felt that they didn’t have the authority to do so.

  24. Dwight Sullivan says:

    [Standard disclaimer:  What I say here is on behalf of myself alone and should not be imputed to DoD or anyone or anything else.]
    Galt, it is not merely that the nature of the proceeding has changed (though that is important).  It is more so that RY and others are asking that R.C.M. 405 be applied to say something that it doesn’t say.  R.C.M. 405(g)(4) speaks of how an “investigating officer” is to receive evidence.  There is no longer such a position.  So R.Y. and others apparently want the courts to de facto amend R.C.M. 405 to address how a preliminary hearing officer is to receive evidence.  And there is no authority for the courts to amend the R.C.M. in that manner.  Because of (and only because of) the NDAA for FY 2015’s amendment of the implementation date for Section 1702(a) of the NDAA for FY 2014, R.C.M. 405 is now dead letter — addressing how to conduct a procedure that no longer exists.  (But for that amended implementation date, R.C.M. 405 would continue to apply to some preliminary proceedings but not others.)  Is that dead letter to be revised by judges reading R.C.M. 405 to say something that it doesn’t say?  That isn’t how we apply the law.  Vara tells us how a void may be filled, and that is by action at the Service level, which we now have. 
    It is also interesting to note that Congress’s Joint Explanatory Statement to Accompany the National Defense Authorization Act for Fiscal Year 2014 expressly mentioned R.C.M. 405 and then observed that Congress was narrowing the proceeding’s objective:
    “The provision included in the agreement changes Article 32, UCM, proceedings from an investigation to a preliminary hearing. Under current law and Rule 405 of the Rules for Court-Martial, an Article 32, UCMJ, investigation includes inquiry into the truth of the matters set forth in the charges, provides a means to ascertain and impartially weigh all available facts in arriving at conclusions and recommendations, and serves as a tool of discovery. The agreement establishes that an Article 32, UCMJ, preliminary hearing has a narrower objective: (1) To determine whether there is probable cause to believe an offense has been committed and the accused committed the offense; (2) Determine whether the convening authority has court-martial jurisdiction over the offense and the accused; (3) Consider the form of the charges; and (4) Recommend the disposition that should be made of the case.”
    159 Cong. Rec. H7949 (Dec. 12, 2013).
    So Congress knew R.C.M. 405’s scope and intended to supplant it.
     
     

  25. Dew_Process says:

    One of the proverbial “Pink Elephants” soon to be thundering around military courtrooms as a result of the “new” Article 32 paradigm, especially with the dubious provision that a purported victim can refuse to testify, is how Crawford and its Confrontation Clause progeny will impact on it. E.g., the new Preliminary Hearing [PH] is clearly “judicial” in nature and is also a “critical stage” of the military justice process for GCMs.
     
    If it is a critical stage, then consider United States v. Wade, 388 U.S. 218, 224–25 (1967), where the Court held:
     

    (“[T]oday’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee [of the right to the assistance of counsel] to apply to ‘critical’ stages of the proceedings.

     
    Of course one of the functions of the “assistance of counsel” is to confront and cross-examine witnesses against the accused, and in the PH context, to demonstrate that there is no reliable evidence rising to the probable cause level (however low that may be).  While of course there are cases – including pre-Crawford SCOTUS cases – that hold that “confrontation” is a trial right as a matter of Constitutional principles, that does not address or resolve the issue involving PH’s under the new Art. 32.  Art. 32(d)(2), provides a statutory right to cross-examine “witnesses who testify,” but then in subpar. (d)(3), the “victim” can not only decline to testify (which should be their right), but then the kicker is that the “victim’s” decision is binding on the judicial “Hearing Officer” and thus the “victim’s” decision makes him/her legally unavailable.  That is not the hallmark of a judicial proceeding, especially if the “victim” is on active duty and at the same duty station.  The constitutionality of that per se determination is quite dubious as a matter of Due Process which certainly applies at an Art. 32 PH.
     
    Consider the [rarely used] federal rule in Federal Rules of Criminal Procedure, R. 5.1(e):
     

    At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired.

     
    Hard to claim that an alleged victim is not an “adverse witness!”  Stay tuned . . . .

  26. Dwight Sullivan says:

    [Standard disclaimer:  What I say here is on behalf of myself alone and should not be imputed to DoD or anyone or anything else.]
    “I don’t agree that Vara can be read so broadly as to expressly authorize a Service Secretary to create substantive military law (and even if it could, I don’t agree that CMA had the authority to grant such authorization).”
    First, CMA can’t and didn’t GRANT authorization to the Services.  Rather, it recognized the existing authority of the Services to fill vacuums.  One could look a number of places to find sources of such authority.  See, e.g., 10 U.S.C. § 5013(b) (“Subject to the authority, direction, and control of the Secretary of Defense and subject to the provisions of chapter 6 of this title, the Secretary of the Navy is responsible for, and has the authority necessary to conduct, all affairs of the Department of the Navy . . . .”).
    Second, here’s a direct quotation from Vara:  “While rules of procedure for military courts are prescribed by the President, there is a void in this field which should be filled.  The Services could correct the deficiency by appropriate regulations . . . .”  United States v. Vara, 8 C.M.A. 651, 654, 25 C.M.R. 155, 158 (1958).  Zack says that this can’t “be read so broadly as to expressly authorize a Service Secretary to create substantive military law.”  The Service Secretaries don’t purport to; their guidance on conduct of Article 32 preliminary hearings is procedural, not substantive.  And CMA expressly recognized the Services’ authority to fill voids in rules of procedure.
    Rather than speculating about what may or may not have led Secretaries of the Military Departments to eschew some specific procedure more than a half century ago, I’ll stick with a clear pronouncement from the Court of Military Appeals:  the Services can fill procedural voids in the military justice system.

  27. Paco says:

    We might as well make “Concur, Mr. Sullivan.” T-shirts.

  28. Zachary D Spilman says:

    I don’t know the answer to this Dwight, and I think you make valid points. Thank you for joining the discussion. I do suspect that we’re in agreement (in your personal capacity, of course) that it would have been much better had the President just promulgated a new R.C.M. 405.

    But I can’t help but fear that we’re in the muck of administrative law, and I’m reminded of this passage from my analysis of Judge Ryan’s opinion in United States v. Newton, __ M.J. __, No. 14-0415/AR (C.A.A.F. Feb 25, 2015) (CAAFlog case page):

    Judge Ryan’s analysis begins by explaining that “this case, which requires traversing the field of administrative law, is one of first impression for this Court, but an area well covered by other federal appellate courts.” Slip op. at 7. She then explains that “The APA distinguishes between two kinds of rules: substantive rules and interpretative rules.”  Slip op. at 7 (citation omitted). “A rule is substantive, and has the force of law, only if Congress has delegated legislative power to the agency and if the agency intended to exercise that power in promulgating the rule.” Slip op. at 7 (citation and marks omitted). “An interpretative rule, by contrast, reflects an agency’s construction of a statute that has been entrusted to the agency to administer.” Slip op. at 8 (citation and marks omitted). Determining whether a rule is substantive or interpretative generally involves “some variation of the legal effects test” which “looks primarily at the language of the statute to determine the substance of the congressional enactment and the scope of the agency’s delegated authority, then compares this to the language of the rule.” Slip op. at 9 (citations omitted).

    (emphases added).
    z

  29. anon81 says:

    Don’t service JAGs implement rules changing/supplementing the RCMs themselves? If they can do it, why can’t the Secretaries?
    See, for example, US v. Doctor: http://jag.navy.mil/courts/documents/archive/2014/DOCTOR-201300187-UNPUB.pdf. RCM provides no limitation on introduction of NJPs, but Navy JAGMAN changes that, such that only NJPs from current enlistment may be considered. How is this different?

  30. Dave Roberts says:

    The labyrinthine logic here makes my head spin.  That it takes Mr. Sullivan (for whom my esteem as a JA approaches reverence) four posts and some twenty paragraphs to explain why RCM 405 is a “dead letter” and service secretaries are authorized to supplant it demonstrates to me how difficult, and arguably tenuous, that position is. 
    I find problematic the premise that “this is a preliminary hearing, not an investigation,” as though those terms are plainly defined and understood by all.  They are not.  There is no nexus in the NDAA between this new process and its purported federal analog, which may be imposed in federal courts only for cases involving misdemeanors (non-infamous crimes).  There is likewise no definition of “probable cause,” nor any express analogy to any state processes, which is where the “probable cause hearing” standard was adopted and developed.  The foundations of this new thing are correspondingly quite murky.  Indeed, if Mr. Sullivan’s argument is correct, then the new process is an unsightly amalgam that borrows the worst from each trial level on the bald premise that servicemembers aren’t entitled to any 5A (or 14A) pretrial process anyway.  It’s a defensible position, but a scary one. 

  31. RY says:

    Old and new Art 32
    1) No GCM referral without Art 32 (same in both)
    2) determine if jurisdiction over accused (new but not transformational of “purpose”)
    3) investigation into charges (old); probable cause hearing (new)
    4) consider form of charges (same in both)
    5) recommend disposition (same in both).
     
    The only difference is item 3.  But it is not so groundbreaking as to render RCM 405 moot.  A quick search on dictionary.com (because I can’t figure out how to get Black’s on Advance Lexis): Investigation is defined as “a searching inquiry for ascertaining facts; detailed or careful examination.”  Funny because a hearing is defined as, “a preliminary examination of the basic evidence and charges by a magistrate to determine whether criminal procedures, a trial, etc., are justified.”  Both are examinations requiring determinations about facts and whether the charges are supported. 
    What evidence is no longer admissible because of this new standard?  Defense can no longer use the Art 32 for discovery but if such info is relevant and necessary, the standard for discovery, why would it be suddenly excluded from a determination of PC?  A probable cause hearing in theory is more narrow but both still require taking evidence relevant to the charges to make determinations about whether there is sufficient evidence to proceed.  If the question enlightens material facts, it served the old Art 32 purpose and it serves the new Art 32 purpose. 
     
    In short, there may not be an “investigating officer” by title but there is still a pretrial hearing with a “hearing officer” who must receive evidence, and weigh that evidence to see if it meets a specific standards.  The title is different but it does not transform the lion into an elephant, IMO. 

  32. Zachary D Spilman says:

    anon81 says:

    Don’t service JAGs implement rules changing/supplementing the RCMs themselves? If they can do it, why can’t the Secretaries? . . . RCM provides no limitation on introduction of NJPs, but Navy JAGMAN changes that, such that only NJPs from current enlistment may be considered. How is this different?

    Your answer is found in the following language from R.C.M. 1001(b)(2):

    Under regulations of the Secretary concerned…

  33. RY says:

    Incidentally, thanks to all for contributing to this post.  This has been enlightening and I do value the opposing viewpoints. 

  34. DCGoneGalt says:

    Paco:  I still am not wearing the “concur” t-shirt.  There is no gaping hole where RCM 405 used to be.  The NDAA only changed portions of the rule.  It didn’t nuke it and require the Services to re-create a new rule.

  35. Dwight Sullivan says:

     
    [Standard disclaimer:  What I say here is on behalf of myself alone and should not be imputed to DoD or anyone or anything else.]
    From Congress’s Joint Explanatory Statement:  “The agreement establishes that an Article 32, UCMJ, preliminary hearing has a narrower objective” than “[u]nder current law and Rule 405 of the Rules for Court-Martial [sic].”
    Old Article 32 but not new Article 32:  “a thorough . . . investigation of all matters set forth therein”
    New Article 32 but not old Article 32:  “The purpose of the preliminary hearing shall be limited to the following”
    Old Article 32:  “inquiry as to the truth of the matter set forth in the charges”  New Article 32:  “Determining whether there is probable cause . . . .”
    Old Article 32:  “At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigation officer shall examine available witnesses requested by the accused.  New Article 32:  “(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).  (3)  A victim may not be required to testify at the preliminary hearing.”
    New Article 32 but not old Article 32:  “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).”
    New Article 32 but not old Article 32:  “A preliminary hearing under subsection (a) shall be conducted by an impartial judge advocate . . . whenever practicable or, in exceptional circumstances in which the interests of justice warrant, by an impartial hearing officer who is not a judge advocate.  . . .   Whenever practicable, when the judge advocate or other hearing officer is detailed to conduct the preliminary hearing, the officer shall be equal to or senior in grade to military counsel detailed to represent the accused or the Government at the preliminary hearing.”
    Congress meant to transform the proceeding required by Article 32 and it did.  A “preliminary hearing” under Article 32 is not the same thing as a “pretrial investigation” under the old Article 32 and a “hearing officer” is not the same thing as the “investigation officer” under the old Article 32.  So when R.C.M. 405 refers to a “pretrial investigation” and an “investigating officer,” it is referring to something that no longer exists.  We can debate the extent to what exists today is similar or dissimilar to what existed before December 26, 2014.  But it strikes me as fatal to the challenge that it depends on treating a preliminary hearing as interchangeable with a pretrial investigation and a preliminary hearing officer as interchangeable with an investigating officer, when they are not (and were not intended to be).  Once it is conceded that R.C.M. 405 must be modified in some way to be effective, the question becomes who decides how to modify it.  And Vara answers that question. 
    Galt, the NDAA didn’t change any portion of R.C.M. 405.  Rather, it removed the old Article 32 in its entirety and replaced it with a new Article 32.  R.C.M. 405 used terms that were premised on the old Article 32 language.  It cannot operate without those terms being amended.  And no one authorized to do so has amended those terms.  Accordingly, the old R.C.M. 405 is inoperable in the post-December 26, 2014 world.  That created the void that the Services are authorized to fill.

  36. stewie says:

    Congress meant to narrow.  If you look at old Article 32, and you look at new Article 32, that’s all they really did.  They narrowed.  To borrow someone else’s phrasing, we didn’t turn an elephant into a lion, we just turned it into a slightly smaller elephant.  The Venn diagrams of old 32 and new 32 have an awful lot of overlap.  So, since Congress didn’t expressly overturn 405, and since Congress created an article 32 process with a lot of similarity to the old process, all we can safely say is that Congress meant to narrow, not destroy.
     
    I’d also respond to the argument that “One could look a number of places to find sources of such authority.  See, e.g., 10 U.S.C. § 5013(b) (“Subject to the authority, direction, and control of the Secretary of Defense and subject to the provisions of chapter 6 of this title, the Secretary of the Navy is responsible for, and has the authority necessary to conduct, all affairs of the Department of the Navy . . . .”).” with the following:
     
    Yes, one could look there.  And other places.  Places where Congress gave EXPLICIT authority to service secretaries.  Yet, we don’t have it in this area, because Article 36 gives it to the President, and only the President.  The fact that Congress gives it in some places, and doesn’t give it in others means something.
     
    In Vara, the court merely suggested “adopting a practice” of serving the matters on the accused.  This does not strike me as very hard evidence, as Zach states.
     
    I agree Congress knew 405s scope and intended to NARROW it, I do not agree they intended it to be destroyed.  I am sure they assumed 405 would be narrowed and eventually altered by the President to conform, but as someone else said, this is not the first time that a statutory law has changed something that’s affected an RCM.  Did we have service secretaries filling the void then?
     
    At the end of the day, someone is going to challenge this, some judge is going to agree, and the service courts, and ultimately CAAF will weigh-in.  I’m not convinced they will hold Vara up as good law in support of this directive.   Of course, by the time that happens, a new RCM 405 will be out.

  37. Dwight Sullivan says:

    [Standard disclaimer:  What I say here is on behalf of myself alone and should not be imputed to DoD or anyone or anything else.]
    Vara expressly mentioned Service regulations:  “While rules of procedure for military courts are prescribed by the President, there is a void in this field which should be filled.  The Services could correct the deficiency by appropriate regulations . . . .”  United States v. Vara, 8 C.M.A. 651, 654, 25 C.M.R. 155, 158 (1958).  The comment above states, “In Vara, the court merely suggested ‘adopting a practice’ of serving the matters on the accused.”  In Vara, CMA itself “suggest[ed] a practice,” but after noting that the Services could adopt “appropriate regulations.”
    And the 10 U.S.C. § 5013(b) grant of authority to SECNAV is quite general:  “the Secretary of the Navy is responsible for, and has the authority necessary to conduct, all affairs of the Department of the Navy . . . .”  While the statute gives certain examples, on the face of the statute they are non-exclusive.  All means all.  That supports an exercise of authority where, otherwise, there would be a gap — just as CMA recognized in Vara.
    Of course, Congress similarly gave the Secretary of the Army “authority necessary to conduct[] all affairs of the Department of the Army.”  10 U.S.C. § 3013(b).  The Secretary of the Air Force has similar authority within her Military Department.   10 U.S.C. § 8013(b). 
     

  38. stewie says:

    I do not think there’s any evidence that “conduct all affairs of the department of the {service}” is authority for proscribing procedural rules for courts-martial (and an Article 32 hearing is part of the court-martial process).  I think that’s a retroactive reach-back for authority that wasn’t intended.
     
    Congress explicitly delegated this authority to the President, and the President only, in Article 36.  Yet you assert that Congress has effectively already (and apparently additionally) delegated this authority to the service secretaries as well?  Earlier you said ” Rather, that responsibility falls on the President and, absent presidential action, case law gives authority to do so to the Service Secretaries.”  But now you seem to be saying Congress gave them that authority. I echo Zach’s thought that I’m not sure that the CMA can take authority from Congress and give it to service secretaries.  I also think this can’t be the first time this has happened, and yet up until now, we’ve never had service secretaries try to fill a vacuum.  I think there is a reason for that.
    There are other places where Congress gives direct authority for service secretaries to do certain things, like Article 27 for example.  But why bother even doing that if they have “all is all” authority?  Seems awfully redundant.  Why even bother delegating to the President if you’ve already given the secretaries “all is all” power?  I don’t think anyone intended for the statutes you cite to be used in the manner you suggest that they are to be used now. 
     
    Vara is a 60+ year old case dealing with a situation where no RCMs had ever been issued to cover said situation.  The court noted that the services could issue regulations yes to allow a path for review/comment by the accused.  This is different.  There is an RCM in place.  It is not completely or even mostly obliterated except by an exceptionally narrow reading of it.  This boils down to a complete mismanagement of the process by not having a new RCM in place for the changes to the law…and now folks are trying to fix it with creative, but I think flawed, citations to obscure US Codes and one 60 year old case.
     
    I still don’t understand why part of the Army directive cites to a 405 that purportedly no longer exists. 
    Quote: “6. Disclosures:  When a convening authority directs a preliminary hearing under R.C.M. 405, within 5 days of issuance of the Article 32 appointing order, counsel…”
     
    I mean that undercuts this whole argument, how can you “direct a preliminary hearing under R.C.M. 405” if R.C.M. 405 does not exist?
     
    I also don’t understand why they used a definition for mitigation that is nowhere near the actual definition of the word (in real life or the Manual). 
     
    Here’s another question:  RCM 1101(d) applies ALL of MRE 412 to “investigative hearings pursuant to Article 32.”  Note, it doesn’t say “investigations,” it says investigative hearings.  So how does the prohibition contained in the Directive blocking the “constitutional exception” from applying at Article 32s, square with RCM 1101(d)?
     
     

  39. Advocaat says:

    (To the tune of “Mrs. Robinson”)Where have you gone, Mr. Dwight Sullivan?Our TJAGs should turn their lonely eyes to you.What’s that you say, Mrs. Debbie James?”Dynamic Dwight left AFLOA not so long ago!”But why’d you let him go, go, go?

  40. Jolly Roger says:

    I also do not think Vara means what you think it means, Mr. Sullivan.  There is a world of difference between what the court suggested in Vara and what the secretaries have done here.  If the service secretaries had taken Vara’s suggestion, they would have used their discretion as the civilian masters of their services to direct SJAs to handle post-trial proceedings in a particular way.  It would have been like an order:  “Give the defense a chance to be heard.”  The result would have been to provide the accused with a procedure he did not already have.  Vara was an appeal to the secretaries to use their supervisory powers to cut the accused a break.  This is very different.  Even assuming for the sake of argument 405 was completely displaced, the secretaries have limited the procedural rights of the accused at the hearing in a way that has no support in the text of the new Article 32, which stands alone now.  For instance, in the Army, the accused cannot prevent the admission of evidence the PHO finds to be reliable, no matter what it is, and cannot admit evidence under MRE 412(b)(1)(C) (which is necessarily relevant, material, and more probative than prejudicial).  That’s not an exercise of supervisory power over SJAs, that’s an exercise of legislative power.  The legislative power, if I remember correctly, resides in the Congress, though they delegate it from time to time.  In the case of rules of procedure and evidence for courts-martial, they’ve delegated it exclusively to the President.  They know how to delegate to the President alone (Article 36 and 46), to the secretary concerned alone (Article 27), and to both the President and the secretary concerned (Article 15).  They have not seen fit to delegate this power to the secretary concerned, and Vara doesn’t change that.  The problem is even worse if you fall into the RCM-405-Is-Mostly-Dead-But-Not-All-Dead camp – the rules also conflict with procedural rights granted to the accused through the President’s express authority.
    I also see this implicating UCI potentially.  The appointing authority says “You’re appointed as a PHO.  Use the procedures in the Service Directive.”  If 405 lives, that sure sounds like an influence of the proceedings.  The practical effect would be on the burden of proof at the 39(a).  If it’s just a motion for a new 32 based on defective procedures, the burden is on the defense by a preponderance.  If it’s UCI, the defense has the whole burden shift thing going for it.
    And just to make it three Princess Bride references, I am not left handed.

  41. Jolly Roger says:

    Congress knows how to delegate to just the Secretary of Defense, also (Article 111).

  42. RKincaid3 (RK3PO) says:

    “Dubious” is an a very, very accurate understatement!

  43. stewie says:

    I think that’s a huge point…Congress knows how to delegate to one, or the other, or both…so when it delegates to one, that’s a pretty good clue that it only intended to delegate to one.
     
    And here’s another issue:
    Art 36(b) All rules and regulations made under this article shall be uniform insofar as practicable, except insofar as applicable to military commissions established under chapter 47A of this title.
     
    Yet here we have differences between the Navy and the Army (which is to be expected when you have each service secretary do their own rules).  What do we do with that?
     

  44. The Silver Fox says:

    R.C.M. 108 also gives the TJAGs the authority to make rules:  “The Judge Advocate General concerned and persons designated by the Judge Advocate General may make rules of court not inconsistent with these rules for the conduct of court-martial proceedings.”  “Not inconsistent” would seem to me to be “not inconsistent” with Article 32, UCMJ since R.C.M. 405 does not apply to preliminary hearings (for the myriad reasons Mr. Sullivan discussed). 

  45. Zachary D Spilman says:

    The Judge Advocate General concerned and persons designated by the Judge Advocate General may make rules of court not inconsistent with these rules for the conduct of court-martial proceedings.

    Article 32 “preliminary hearings” may not be the same as Article 32 “pretrial investigations,” but they’re definitely not “court-martial proceedings.”

    Particularly since “a court-martial is a temporary court, called into existence by a military order and dissolved when its purpose is accomplished.” United States v. Weiss, 36 M.J. 224, 228 (C.M.A. 1992), aff’d, 510 U.S. 163 (1994).

  46. stewie says:

    RCM 108 is based, in part, on Article 140: Delegation by the President (see the analysis to RCM 108) giving the President the power to delegate or allowed sub-delegation of his power.  So that strikes me as 108 being a delegation of authority by the President of his power to the TJAGs…which means it’s not about the UCMJ, but the RCMs.
     
    So, no, it is not authority for what we are talking about here (which even if it were, it’s not being done by the TJAGs).
     
    Not to mention the various and sundry issues raised with the idea that RCM 405 does not apply to preliminary hearings.  Mr. Sullivan didn’t really give myriad reasons, he primarily hung his hat on the fact that different words were used (IO v. PHO, investigation v. hearing)…which some of us think is a pretty slender reed.
     
     

  47. The Silver Fox says:

    ZS:  I assume you think the Manual for Courts-Martial and the Rules for Courts-Martial both only apply to the trial itself.