Both the Senate and the House have passed versions of the National Defense Authorization Act for Fiscal Year 2016 that contain numerous military justice provisions. The Senate was last to act (passing its version on June 18), and the House has requested a conference to resolve the differences.

I’ve excerpted the military justice sections of both bills into separate documents. The House version is available here. The Senate version is available here.

Notable sections include:

  • Section 546 of the Senate version, changing the corroboration rule for confessions to require only corroboration of the trustworthiness of the confession rather than corroboration of the actual matters confessed. The corroboration rule (and its requirement for corroboration of facts rather than truthiness) was at issue this term in United States v. Adams, 74 M.J. 137 (C.A.A.F. Apr. 27, 2015) (CAAFlog case page).
  • Section 557 of the House version, requiring establishment of a database to track all service members – current and former – who have been convicted of a sex offense at a court-martial, for the purpose of ensuring that they are properly registered as a sex offender.
  • Section 549 of the Senate version, permitting an alleged victim to file an interlocutory appeal of certain issues, requiring a CCA to conduct a de novo review of those issues, and requiring the CCA to issue its decision within 72 hours of the filing of the petition.
  • Section 551 of the Senate version, granting an alleged victim a right to Special Victims’ Counsel during questioning by military criminal investigators, but specifically stating that a violation of the right shall not be a basis to suppress any statement given by an alleged victim.
  • Sections 546 and 1159 of the House version, which would require that a victim be allowed to participate in nonjudicial punishment and administrative separation proceedings.
  • Section 548 of the House version, adding a mandatory minimum 2 year period of confinement to the mandatory minimum dishonorable discharge for certain sex offenses.
  • Section 556 of the House version, requiring public access to court-martial documents at all stages of the proceedings.
  • Various provisions in both bills expanding the scope of the role of Special Victims’ Counsel.

31 Responses to “Military justice provisions in the draft FY16 NDAA”

  1. stewie says:

    They won’t be able to do public access at all stages without some serious changes to the technology and additional paralegals.
     
    So that little bit might end up doing us some good.

  2. RKincaid3 (RK3PO) says:

    First Congress removes the quest for the truth from Art 32 proceedings and now this–removing the quest for truthfulness out of the corroboration requirement for confessions/admissions.  Obviously, the message is “don’t let the truth interfere with subjectively (and politically) satisfying results of trials.
     
    Anyone else bothered by this–yet another blatant attempt to modify the system to enhance a subjectively satisfying outcome to hell with the consequences for basic due process, and oh, by the way, truth (and, of course, last but not least, justice and the American way)?
     
    Zack:  you said in the Adams post:
     

    Today’s ruling doesn’t just reverse the Army CCA; it also breathes new life into the corroboration rule.
     

    Well, as is usual for Congress, they just killed a necessary component of true, objective justice–the truthfulness of the facts and evidence underlying the criminalization of the citizenry–in favor of injustice disguised a subjectively satisfying, ends-justify-the-means outcome. 
     
    Seems to me that this flies in the face of reaching BRD based upon truthful evidence, facts and circumstances–now BRD will be based upon an honest but sincere, half-informed, and in many cases, completely erroneous suspicion and speculation.
     
    Sigh….we are indeed our own worst enemy!

  3. Seamus Collins says:

    I agree with Section 557 (sex offender database) and Section 556 (public access to CM documents) but disagree with the remaining changes.
    I am reminded of the legal premise that “the law must be stable, yet not stand still.”  It seems that every year, Congress changes important areas of the UCMJ (specifically Art. 120).  Unfortunately, these changes make the law unstable and unpredictable.  Why must we change the corroboration rule?  Why provide victims with SVC’s when they are interviewed by CID?  Why expand the role of the SVC? 
    IMHO Congress is making too many legal changes too quickly and does not see the third and fourth order effects these changes will have on the justice system.  Specifically, now the Government has less difficulty corroborating a confession while a victim will not have to answer important questions asked by CID due to having an SVC present during questioning.
    No case is bigger than the system.  Whether we like it or not, the system is meant to protect the rights of the Accused.  The more rights we take away from the Accused and the more rights we give to victims, the more we errode the purpose behind our justice system.  I’m not saying that victim’s should not have rights, but they should not have these rights if it is at the expense of the Accused getting a fair trial.
    I am nervous about the third and fourth order effects these changes will have on the system

  4. RKincaid3 (RK3PO) says:

    Oh, and I noticed that with all the thoughtful additions/changes to sections 546, 549, 551, 557, 1159  and the other
     

    “various provisions in both bills expanding the scope of the role of Special Victims’ Counsel,”

     
    the Congress forgot to add a new section changing the name of the Special Victims Counsel program to a more accurate descriptive name, specifically, “Special VENGEANCE Counsel.”
     
    Obviously, the goal with these changes, in conjunction with amendments excising “the truth” from UCMJ proceedings at every possible level, is to facilitate retribution for perceived–not proven–slights or reproaches that may, or appear to be sex assault (using vague and ambiguous statutory language that captures and criminalizes as sex assault a variety of non-sexual human conduct) at any and all costs–to hell with basic American principles of justice, law and common decency in a civilized society. 
     
    Many of these changes are not that far removed from creating legitimized, organized, and systematized “blood feuds,” where the aggrieved’s personal feelings matter most.  And that requires subjectively satisfying vengeance, not objective justice.
     
    Shameful…
     
    Shame on them and us for tolerating this on election day.

  5. stewie says:

    Not sure the SVC changes do anything. There is no privilege to her statements if the SVC is present during CID questioning, and it’s not like CID was asking hard-hitting questions before.
     
    (Although one wonders if the presence of the SVC makes them a witness, at least as to what was said during the CID interview, but not sure in practice calling the SVC for that purpose yields anything good most of the time).
     
    The change to corroboration is disappointing but so long as we end up somewhere in the middle between the law right before Adams, and the law after Adams, that’s actually probably the right spot. Depends on how they write it up in the final draft i suppose.

  6. Advocaat says:

    More lipstick, same pig.

  7. RKincaid3 (RK3PO) says:

    Amen, Seamus.
     
    Stewie:  in case you are not aware, CID hates SVCs almost as much as they hate TDS.  The general consensus of many agents who came through the my offices at my last assignment was that SVCs were making investigations harder and were not helping.  That is an inevitable but unintended and negative consequence of this program–and one that none conceived of by those in the brain trust who thought elevating a victim from a “witness” to a “party” (in practical effect) was a good idea. 
     
    The program is a travesty and I find no solace in the system winding up somewhere with a balance between a conviction being based upon as much truth as humanly possible and it being simply “maybe truthful.”  Good government does indeed require balance, but not in the justice context, where the government is supposed to have an uphill battle when criminalizing the citizenry.
     
    As alluded to by Seamus: No case is bigger or more important than the system–the same system which governs us all and in which we all–society, the victim and the accused–must put our faith.  Right now, there is little reason to put much faith in our military or civilian leaders who seem way too eager to cooperate to bend over backwards to ease the government’s burden at trial. 
     
    Indeed–some of these changes are very, very Military Commissions-esque!  Due process is a nice gloss over substance.

  8. stewie says:

    I’ll just stand by my belief that the SVC changes in practice do very little helpful to the government, and might actually, in some cases, inure to the benefit of the defense. (Kind of like the entire SVC process).

  9. RY says:

    The sex offender database sounds like a good thing but it is a terrible idea for DOD.  Registration is a state matter and whether someone is “properly” registered will require DOD to understand the nuances of each state’s laws/determinations without being part of the process and without any notification rights to be informed by states of their decisions.  Imagine being the person tagged with figuring out if each person is supposed to register, which tier they belong to, and whether they have properly been registered according to state rules!
     
    Moreover, with mandatory minimums, most offenders will receive confinement and a punitive discharge.  Registration comes after the individual is released from confinement.   With appellate review taking years and many offenders serving years, DOD could be tracking folks years after their courts-martial when they are civilians who have been discharged already.  This will be a logistical nightmare if made law.

  10. Monday morning QB says:

    What RY said.  Sex offender registration is up to the state where the accused goes after release, etc.  The states do their own independent factual analysis regardless of what is on the report of results of trial.

  11. stewie says:

    I’d read the registration thing as simply being a place to quickly track whether someone had received a conviction for an offense that was reportable…not necessarily as a replacement for a state by state examination. Covering those who for one reason or another slip through the cracks (for example for whatever reason the result of trial does not reach the state where the accused settles).

  12. Ed says:

    Section 549. Does this include 3 day weekends? How about if Christmas is on a Thursday?

  13. Christian Deichert says:

    Another turn of the 1,000-mile screwdriver.  That’s some proposed change to MRE 304.  Would Matt Golsteyn still be looking only at a GOMOR and a general discharge if this proposed rule had been in effect?

  14. k fischer says:

    Section 551 of the Senate version, granting an alleged victim a right to Special Victims’ Counsel during questioning by military criminal investigators, but specifically stating that a violation of the right shall not be a basis to suppress any statement given by an alleged victim.

    If the purpose of this section is so that the Government can prosecute a complaining witness for false allegations made during questioning by CID without a motion to suppress the statement being granted because the SVC was not present, then I support this Section wholeheartedly.

    Sections 546 and 1159 of the House version, which would require that a victim be allowed to participate in nonjudicial punishment and administrative separation proceedings.

     
    If they participate, then can they be cross-examined.  And, if they refuse to participate, then can the Commander imposing NJP draw a negative inference towards the complaining witness’ credibility if they refuse to participate?
     

    Section 548 of the House version, adding a mandatory minimum 2 year period of confinement to the mandatory minimum dishonorable discharge for certain sex offenses.

     
    Will the panel be instructed that there is a mandatory minimum of 2 years confinement for said offenses during voire dire?
     

    Section 556 of the House version, requiring public access to court-martial documents at all stages of the proceedings.

     
    This would be great.  But, what about 412 and 513 motions?  Will they be filed under seal to prevent the public from accessing the documents?  Will the complaining witness’ names be required to be redacted?

  15. Amateur Hour says:

    At this point, I think it would be prudent for them to just do what they are itching to do and remove sex offenses from military justice entirely; let special appointed feds or AUSAs prosecute the cases (and deal with the cases as they are given).
    The changes are very questionable.  I can see why many Judge Advocates, over time, become defense hacks.

  16. Defense Wizard says:

    I cringe at the SVC business. Basically, the victim will be allowed to “get their story straight” and hide evidence with an attorney before talking to CID. Pardon me for being cynical on this, but I trust the SVC the least of all the players in the court room.
     

  17. DCGoneGalt says:

    Amateur Hour:  I am not quite to your “the hell with it, just give it to the civilians” point.  In any event, I don’t think that is an option that the POD-People would consider because the cases would have to be handed over to specially appointed, trained (i.e. controlled) investigators and AUSAs or a politically-appointed civilian prosecution task force because most independent prosecutors wouldn’t take more cases to trial than the military already takes to trial.  (And I would be surprised if they were able to increase the conviction rate of those cases that do go to trial . . . especially if the the trials become “civilianized” and result in actual juries that require a unanimous verdict to convict.) 
     
    I love beating a dead horse but for over a year the scenario below is what I have honestly thought would be the eventual end-game of this craziness. (from http://www.caaflog.com/2014/04/14/air-force-jag-files-a-certificate-of-review-of-the-afccas-denial-of-a-government-effort-to-stop-a-deposition-of-an-alleged-victim-of-rape/ ):
     

    I think the worst endgame scenario involves a centralized Sexual Assault Justice system with a separate preferral/referral authority, as well as regional Art 120 IOs for Art 32s, regional SVPs and quarterly member panels in each region that are specially chosen to hear Art 120 cases. Creating a wholly separate system for Art 120 cases with these special command and prosecution structures would likely achieve the desired result of many more cases going forward and increase the conviction rates. It is a truly scary proposition but one that I think is more possible than the complete abolition of the military justice system, or even the partial abolition of taking Art 120 cases and handing them to civilians.

     
    When that scenario is taken seriously it truly will be time to run off to the gulch and await the collapse of the system.

  18. k fischer says:

    Amateur Hour,
     
    But, what about the $257 Million that the military gets to fight the war on sexual assault?  TJAG’s can’t let that go.  Think about all the training, the TDY’s to Charlottesville, the counterintuitive victim experts who wouldn’t make $2k a day, and  all the billets they needed filled when gearing up for the war on sexual assault.  The JAG Corps of the respective services would be over-strengthed if they didn’t have SVP’s, so they might have to let some attorneys go.  This is pretty big business.  Just go on the dockets of any post and see how many 120 offenses are being tried and look how much money is flowing through each post each year. 
     
    Dropping the cynicism, I believe that TJAG’s do want to make the system better, as well, and I think they can.  They just need Commanders to get out of the blame line when cases go south, so they can take full responsibility.  Right now, JAGs can blame Commanders for taking stupid cases and Commanders can blame JAGs for recommending that stupid cases go to Courts-martial.  McCaskill wants Commanders to be in charge of referrals, so they can send everything forward to ensure they don’t have to have their actions questioned by her at a Senate confirmation hearing, even when their SJA recommends dismissal.  Then, McCaskill uses that like it’s some sort of victory and justification for keeping decisions to refer sexual assaults with Commanders because they will disregard the advice of their SJA!  And, that is not a fair system. 

  19. Advocaat says:

    @DW, I don’t disagree that the SVC program is flawed; I do disagree with your premise that SVCs come in last in the trustworthiness department simply by virtue of their assignment.

  20. DCGoneGalt says:

    k fischer:  As to slashing the budget for the War on Sexual Assault (the one war that the military actually seems to care about fighting): 


     
     
     

  21. Unfunded Mandates says:

    There is no mention of new billets for the services to carry out House Sec. 557’s requirement that:  

    In the case of each individual identified in the database pursuant to paragraph (2)(B) who fails to register with a sex offender registry . . . the Secretary of Defense shall make available on the Internet, in a manner that is readily accessible to the public, the following information: (A) The name of the sex offender (including any alias used by the individual). (B) A physical description of the sex offender. (C) A most recent photograph of the sex offender. (D) The last known address of each residence of the sex offender and, if applicable, the intended address of residence of the sex offender. (E) The criminal offense for which the sex offender is registered in accordance with the Adam Walsh Child Protection and Safety Act of 2006 (Public Law 109-248; 120 Stat. 587) or other applicable Federal, State, or local laws. (F) Notification that the sex offender has failed to register on a sex offender registry in accordance with Federal, State, or local laws. (G) Any other information required by Secretary of Defense, in accordance with existing laws and regulations.

    I’d hate to be the guy that gets that additional duty.
    Further, I don’t see any additional billets for the appellate shops or the CCAs in order to execute Senate Sec. 549’s requirement that:

    (1)(A) If the victim of an offense under this chapter believes that a preliminary hearing ruling . . . or a court-martial ruling violates the victim’s rights afforded by [this section, M.R.E. 412, M.R.E. 513, M.R.E. 514, or M.R.E. 615], the victim may file an interlocutory appeal of such ruling by petitioning the Court of Criminal Appeals for an order to require the judge advocate conducting such preliminary hearing, or the court-martial, as the case may be, to comply with the section (article) or rule, as applicable.  (B)A victim of an offense under this chapter who is subject to an order to submit to a deposition notwithstanding the fact that the victim shall be available to testify at the court-martial of the offense may file an interlocutory appeal of such order by petitioning the Court of Criminal Appeals for an order to quash such order.  (C)The Court of Criminal Appeals shall provide a de novo review of the question or questions raised by a petition filed under this paragraph. A single judge or panel of judges shall take up and decide the petition within 72 hours after the petition is filed.
    * * *
    (3) . . . If the Court of Criminal Appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion.

    Getting briefs from the (three) parties involved in handling these sorts of interlocutory appeals and rendering a written decision (if the military judge/PHO is upheld) in 72 hours would be a feat . . . even if the appellate shops and the CCAs were adequately manned.  And this does not even address what happens when the losing party appeals such a ruling to CAAF.  I wonder if the various appellate shops would be able to do anything other than handle victim interlocutory appeals at their current manning levels.
     
    There’s also no discussion of additional billets to handle all the sex assault cases which will flood the appellate shops and the CCAs (and CAAF) as a result of these mandatory minimums.  Much less is there any talk of increasing the number or size of military prisons to handle the additional workload which will result.  

  22. dyskolos says:

    We may not have to deal with all these changes. Cooler heads may yet prevail.  “If you see 10 troubles coming down the road, you can be sure that nine of them will run into the ditch before they reach you…. ” Coolidge.

  23. anon says:

    Section 549 of the Senate version, permitting an alleged victim to file an interlocutory appeal of certain issues, requiring a CCA to conduct a de novo review of those issues, and requiring the CCA to issue its decision within 72 hours of the filing of the petition.
    Smarter folks than myself can assess whether this is a good or bad idea, however, can anyone think of another jurisdiction/court that has de novo review of an interlocutory appeal (criminal or civil)???

  24. Phil Cave says:

    @anon.
     
    Yes, this comes out of federal statute.  See 18 USC 3771.
     
    See this document that was presented to the JPP.   
    http://jpp.whs.mil/Public/docs/03_Topic-Areas/04-SVC_VictimAccess/20150116/33_CRSReport_Summary_LegalAnalysis_18USC3771_20120424.pdf
     
    And see this from the Federal Defender organization.  http://www.fd.org/docs/select-topics/rules/rights-and-procedures-under-the-crime-victims-rights-act-and-new-federal-rules-of-criminal-procedure-for-victims.pdf?sfvrsn=4

  25. Phil Cave says:

    So anon.  It’s been suggested to me that my analogy to federal practice is off, to which I can agree to this extent:  18 USC 3771 affords a petition for mandamus vice an interlocutory appeal, and the statute doesn’t set out the de novo standard of review.

  26. anon says:

    Mr. Cave, I should have clarified my surprise was with the standard of review.   I’ve been trying to think of a corollary in state or federal, but can’t. Maybe good, maybe bad . . . definitely novel.

  27. Phil Cave says:

    @anon.  No problem.  Your question was the right one as my correspondent rightfully pointed out to me.  This is an extension of the CVRA into newer ground so the analogy doesn’t hold.  In some initial reading on the CVRA I see there are any number of sticky issues that come up.  The 549 version may well bring us more litigation and problems.
     
    I did come across this interesting little nit.  It’s particularly interesting in light of CAAF’s jurisprudence that the Sixth doesn’t apply in sentencing.  But then again it’s the Ninth.
     
    http://circuit9.blogspot.com/2015/06/case-o-week-cvra-sends-remand-our-way.html
     

  28. stewie says:

    The odiousness of the federal civilian sentencing process just brings me back/confirms in my mind the thought that yes our sentencing process is one of the areas where we make up for deprivations of the accused rights in other areas by giving expanded (i.e. fair) rights to the accused there.

  29. Concerned defender says:

    And the modern day witchhunt continues.  Seems that the “justice” of prosecuting alleged “sex offenders” amounts to every possibly unfair advantage given to a (generally female) at the expense of due process and rights of an accused.  We live in an era where LESS independent extrinsic evidence of an alleged offense of sex assault benefits the prosecution, which is a weird area to be.  This is nothing more than a war on men. 
    It takes little more than a 1-time spoken allegation to ruin anothers’ career.  The irony is that the good folks in Congress are generally covered in scandals that would put an E2 in prison for eternity.  

  30. Phil Cave says:

    @Concerned defender.
     
    Perhaps we should publish an updated version of Malleus Maleficarum.  Where it refers to witches substitute men or MST accursed.  I have linked to the “judicial” process in trying witches.  Here is a cherry-picked quote from the Part III, Second Head, Question IX
     

    But let us proceed in the order as above. If the accused says that she is innocent and falsely accused, and that she wishes to see and hear her accusers, then it is a sign that she is asking to defend herself. But it is an open question whether the Judge is bound to make the deponents known to her and bring them to confront her face to face. For here let the Judge take note that he is not bound either to publish the names of the deponents or to bring them before the accused, unless they themselves should freely and willingly offer to come before the accused and lay their depositions in her presence And it is by reason of the danger incurred by the deponents that the Judge is not bound to do this. 

     

  31. k fischer says:

    We live in an era where LESS independent extrinsic evidence of an alleged offense of sex assault benefits the prosecution, which is a weird area to be.
     

    CD, I agree.  Another paradigm shift is that the Defense is more likely to be the one fighting to admit relevant evidence for the panel to see and hear, and the Government is now more likely to be fighting to keep it out.  It is a complete role reversal in the search for the truth. It happened in my last court-martial where the Government fought to keep IMO very relevant surreptitiously recorded conversations between he and the false accuser away from the panel, and only after the President asked to listen to the recordings did the MJ allow them into evidence as an “appellate exhibit.” 
     
    Because it is so easy to make a false allegation for a person who is motivated to ruin someone’s career, we are going to see a lot more of these cases.