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.
The Committee met on March 3, 2015, the meeting was open to the public, and I attended. Here is a summary of my notes (all commentary is mine and all statements are paraphrased).
- The JSC will see a pretty substantial change in membership during 2015. Change is already apparent with Marine Corps Colonel John G. Baker (recently the Chief Defense Counsel of the Marine Corps) as the new Chair of the JSC.
- Two proposed executive orders (PEO) are undergoing the inter-agency review process prior to transmittal to the President for signature:
- PEO-1: The “Residuum EO.” This EO includes 121 changes consisting largely of material previously proposed but not included in prior changes. For example, it includes the model specifications for the current version of Article 120.
- PEO-2: The “Regular Cycle 2014 EO.” This EO includes the results of the JSC’s 2014 annual review (last discussed here).
- The first recommendation in the initial report of the Judicial Proceedings Panel (discussed here) questioned why the process to implement changes to the UCMJ takes so long. The JSC took note, and is actively trying to streamline the process.
- The JSC hopes to publish a truly electronic (and always up-to-date) version of the MCM sometime in 2015-2016. Sadly, various permutations of eMCM.com/org/etc are taken, but perhaps eMCM.gov is available.
- Judge Ryan asked about the genesis of the proposed language of the new R.C.M. 1001A that would allow a victim to make an unsworn statement during sentencing (discussed here). Col Baker explained that the JSC was not directed to propose this change, but rather that it was the product of suggestions made to the JSC in public comments and of analysis of the Article 6b right of a victim to be heard.
- Chief Judge Baker asked about whether the JSC considered the existence/function of the Code Committee. Col Baker answered that the JSC did not consider this because the MJRG will consider it.
- There was some discussion of the MJRG process, including questions about whether (and when) its report will be available to the public. Notably, last year’s meeting included discussion of the whether the MJRG is subject to FACA. It is not (unlike the Judicial Proceedings Committee). This year’s discussion did not produce a clear answer about when and whether the MJRG’s report will be released to the public.
The Committee then went around the room with presentations from each service. For the second year in a row, sexual assault prosecutions (and the SVC programs in particular) were the main topic of discussion. My service-specific notes include:
- Army: Overall the Army is very busy, but the JAG Corps has been relatively fortunate in maintaining personnel numbers while the service downsizes. A big legal issue is retaliation for reporting offenses, and the Army is trying to be careful as it addresses “social” retaliation (noting that service members have First Amendment rights).
- Air Force: The Air Force SVC program continues to evolve, while the Air Force JAG community has suffered some significant manpower reductions.
- Navy: The number of courts-martial has decreased significantly, while the number of nonjudicial punishments has increased significantly. A contractor has been selected for the newest attempt to develop a unified military justice information system within the Department of the Navy (this effort dubbed NJIS – the Naval Justice Information System).
- Coast Guard: From FY13-FY14 the Coast Guard military justice caseload more than doubled, with the most significant growth occurring in sexual assault prosecutions. There is an effort underway to develop a JAG force out of reserve Coast Guard attorneys (though they will likely not be available for military justice assignments, but instead for other Coast Guard functions). There is also an effort underway to develop a Coast Guard trial judiciary. Finally, the Coast Guard (a part of DHS) is concerned about maintaining appropriate parity with the DoD, considering how the UCMJ applies to the Coast Guard.
- Marine Corps: The #1 trend in the Marine Corps legal community is that military justice is significantly more complex that in the past.