President Trump signed the National Defense Authorization Act for FY18, Pub. L. No. 115-91, last week. The legislation includes nine sections with military justice provisions.

A bookmarked PDF of the military justice provisions is available here.

Here are the most significant provisions (based on my initial review), in the order in which they appear in the legislation:

Section 531(a) amends Article 6b(e)(3) to add a reference to CAAF review of an alleged victim’s Article 6b petition, giving CAAF jurisdiction over such petitions and thereby reversing the court’s decision in Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).

Section 531(n)(1) allows the President to prescribe regulations applying the changes in the Military Justice Act of 2016 to offenses alleged to have been committed before the effective date of the changes.  Section 531(o), however, provides that sentencing in cases involving pre- and post-MJA cases will use the pre-MJA sentencing rules unless the accused requests post-MJA sentencing (and presumably this could occur as part of a plea agreement).

Section 531(n)(2) makes the new 10-year statute of limitations of child abuse offenses in Section 5225 of the MJA (amending Article 43(b)(2)(A)) retroactive to the date of enactment of the MJA (December 22, 2016), regardless of the effective date of the rest of the MJA.

Section 532 authorizes the use of “civilian employees . . . experienced in the prosecution or defense of complex criminal cases to provide assistance to, and consult with, less experienced judge advocates throughout the court-martial process,” thereby allowing the services to outsource a core competency of the judge advocate communities.

Section 533 creates a new Article 117a prohibiting the wrongful broadcast or distribution of intimate visual images. The new Article is similar to the provision enacted by the House in May (discussed here), avoids the serious flaws in Article 1168, U.S. Navy Regulations (analyzed here), and includes as an element of the offense that the accused’s “conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.”

Section 1081(c) makes technical and clerical corrections to the MJA. Among these, Section 1081(c)(1)(H) corrects the new Article 53a(d) to make plea agreements binding on members (an error I noted in my public comment on the proposed MCM changes implementing the Military Justice Act of 2016).

13 Responses to “Military Justice Provisions in the FY18 NDAA”

  1. Muad'Dib says:

    “Section 532 authorizes the use of “civilian employees . . . experienced in the prosecution or defense of complex criminal cases to provide assistance to, and consult with, less experienced judge advocates throughout the court-martial process,” thereby allowing the services to outsource a core competency of the judge advocate communities.”
     
    I understand that there are circumstances in which it might make sense to bring on board additional civilian defense counsel. But are we really at the point that we need to provide for the replacement of our own Government attorneys? Are the services so inept that they cannot properly prosecute the cases they bring to court-martial?

  2. (Former)ArmyTC says:

    Muad’Dib, that just sounds to me like statutory authorization for the HQE programs that the Army uses at the TCAP/DCAP levels and that the Navy/Marine Corps use in the field. I see nothing in there amending Article 27 to allow civilians to appear as trial counsel, or article 38 allowing for the government detailing of a civilian defense counsel (Art 38(b)(2) The accused may be represented by civilian counsel if provided by him).

  3. k fischer says:

    Section 532 authorizes the use of “civilian employees . . . experienced in the prosecution or defense of complex criminal cases to provide assistance to, and consult with, less experienced judge advocates throughout the court-martial process,” thereby allowing the services to outsource a core competency of the judge advocate communities.
     

    So, how does this work for civilian defense counsel?  If Private Snuffy’s TDS team have a total of 1 contested Court-martial martial for a larceny between them compared to an SVP who has 25 contested sex cases, then can Snuffy request a Civilian Defense expert to assist in his defense to be paid at the Government’s expense?  Or does this just authorize Defense Billets to hire a civilian employee to assist a specific office and/or region the way a HQE’s do?  Or, can they sit at Counsel’s table during the trial and announce their certification on the record like an SVP?
     
    And, will Congress and/or JAG Corps fund a defense position?

  4. Nathan Freeburg says:

    I agree with (Former)ArmyTC.
    Nothing new there.  Just codifies what has been happening for at least 8 years now.

  5. Nathan Freeburg says:

    k fischer:
    right now, both TCs and DCs can call up TCAP or DCAP and get advice at any point during a trial. 
    However, TCAP sends folks on some major cases to sit in the courtroom and help out (sometimes civilian, sometimes uniformed).  DCAP doesn’t do this for the obvious reason that they have 1/3 as many people as TCAP.

  6. Zachary D Spilman says:

    To those who think this is merely a codification of the status quo, it’s not. Rather, it is a significant expansion of the use of civilians to perform the functions of supervising (read higher-ranking) judge advocates.

    Section 532 of the NDAA authorizes the “use [of] highly qualified experts and other civilian employees. . . ” (emphasis added). 

    Highly Qualified Experts (HQEs) are a special category of temporary employee authorized by 5 U.S.C. § 9903. They are hired outside the normal civil service process and their employment is statutorily limited to five years (with a possible additional year extension). DoD regulations further explain that “HQEs are a temporary infusion of talent and provide non-permanent support for short-term endeavors.” DoDI 1400.25, V922, ¶ 4.a (emphasis added). 

    Civilian employees, however, are permanent fixtures.

    HQEs don’t replace uniformed personnel; civilian employees do.

     

  7. Nathan Freeburg says:

    Zach, I’m aware that Sec. 532 changes the job security for HQEs.  I’d be surprised if any of the services are going to start put civilians into the TC/DC rating chains.  (I could see civilians as permanent CoJs at installations.)

  8. Zachary D Spilman says:

    I very much hope I’m wrong about this, Nathan Freeburg, and five or ten years out we see more upper-middle (O-5 and thereabouts) judge advocates with solid military justice experience in leadership roles and developing the next generation. 

    But I predict we’ll see the opposite.

  9. (Former) ArmyTC says:

    Zach, I believe that while the Army might call the TCAP/DCAP civilians “HQE” colloquially, they are GS permanent employees with “litigation expert” titles. So that “other civilian employee” might just be a recognition that there are, in fact, other civilian employees who serve the HQE function in a permanent billet.
     
    k fischer, again, the statute does NOT amend articles 27 or 38, so I do not see authority for civilians to sit as trial counsel or be retained by the government to serve as defense counsel. Switching gears to fiscal law, there is no statutory authority to pay for that.
     
    Nathan, I always thought that the reason DCAP didn’t do field support the way TCAP does was a function of attorney/client privilege and relationships? I always saw it difficult to have an attorney who is not a member of the defense team sit through a trial and give advice on trial functions that are informed by privileged communications by the accused? I certainly would like to see the Army shift to a model more like the Navy and Marine Corps where those resources for defense counsel are regional and easier to access.
     

  10. Nathan Freeburg says:

    (Former) ArmyTC,
     
    That is certainly a reason why you don’t see DCAP “ringers” on defense teams the way TCAP occasionally does it.  

  11. stewie says:

    1. Concur that this just gives HQEs more job security. Right now they are effectively “temp hires.” Now, they can be civilian hires and stay permanently if desired. I see no evidence that this will lead to gov civ attorneys at trial on either side as counsel.
     
    2. DCAP has a different model than TCAP. I personally think the former is way more effective than the latter. I’ve seen the help both orgs provide, and while I respect that folks in TCAP are working hard and trying to do good things, I think there’s no question that DCAP, at least in the Army, is way more effective overall. Yes, they have fewer people, but I don’t think that’s a handicap given the model and the extensive training done compared to TCAP.  I think it’s a true give a fish, teach to fish comparison.

  12. PJM says:

    stewie says:  I see no evidence that this will lead to gov civ attorneys at trial on either side as counsel.
    Agreed that “this” will not lead to gov civ attorneys at trial, but the admiral’s desire to have the most experienced prosecutor on his or her GCM cases will certainly be a defining factor.

  13. Concerned Defender says:

    I’m particularly concerned by the continued and expanding use of Ex Post Facto laws.   It’s a fundamental principal that these are unjust.  Yet we continue to march down this path and justify it – as has been done with Lautenberg and similar.  Now we see it again. I may be incorrect but I read this that it reaches back to 22 DEC 2006.  Or is this to be read 10 year S.O.L. going forward from 22 DEC 2016? 

    Section 531(n)(2) makes the new 10-year statute of limitations of child abuse offenses in Section 5225 of the MJA (amending Article 43(b)(2)(A)) retroactive to the date of enactment of the MJA (December 22, 2016), regardless of the effective date of the rest of the MJA.