As discussed in this post, the Joint Service Committee recently solicited public comments for its 2015 annual review of the Manual for Courts-Martial. Here is a link to my contribution, in which I made the following suggestions:

a. Increase procedural protections for a person accused of contempt.

b. Limit the use of personal identifiers in court-martial documents.

c. Consider rules to address contemporaneous public access to court-martial documents.

d. Clarify the effect of a staff judge advocates pretrial advice.

e. Explicitly state that the different clauses of Article 134 constitute discreet discrete offenses that must be alleged in separate specifications.

f. Require production of a privilege log when any entity who is represented by counsel asserts an evidentiary privilege.

g. Restrict the Government to the privileges contained in Military Rules of Evidence 505, 506, and 507.

h. Ensure consistency in prosecutions under Clause 1 and Clause 2 of Article 134.

4 Responses to “My contribution to the 2015 annual review of the MCM”

  1. GrammarStickler says:

    I believe you mean “discrete.”

  2. Zachary D Spilman says:

    Indeed I do. Unfortunately, I can’t fire my editor.

  3. iKennen says:

    With regard to your first suggestion, concerning the procedure for contempt, I note that RCM 808(d) currently requires convening authority involvement:

     

    If the person was held in contempt, then a separate record of the contempt proceedings shall be prepared and forwarded to the convening authority for review. The conven- ing authority may approve or disapprove all or part of the sentence. The action of the convening authority is not subject to further review or appeal. 

    I wonder whether the convening authority is permitted to be involved.  At least in cases where the alleged contempt concerns the conduct of counsel, Art 37a seems to prohibit convening authority involvement: 

    (a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. 

    I am also dubious of the President’s authority to preclude appellate review where Congress has not done so explicitly and where contempt appeals are permitted from the U.S. District Courts.  Further, the Supreme Court has said regarding civil contempt:

    The right of a nonparty to appeal an adjudication of contempt cannot be questioned. The order finding a nonparty witness in contempt is appealable notwithstanding the absence of a final judgment in the underlying action.  

    United States Catholic Conf. v. Abortion RightsMobilization, 487 U.S. 72, 76 (1988); United States v. Ryan, 402 U.S. 530, 532 (1971);Cobbledick v. United States, 309 U.S. 323, 328 (1940).

  4. Zachary D Spilman says:

    Great point iKennen. Thanks. I hadn’t thought of that.

    I think two fair responses to your point are that (1) the terms “ensure, reprimand, or admonish” in Article 37 are legal terms of art that mean something different than a contempt punishment (note that performance evaluation issues are addressed in a separate part of the statute); and (2) a military judge has no authority to enforce a contempt punishment and so convening authority action is inherently necessary.

    But I agree that the involvement of the convening authority puts strain on the protections of Article 37.