Congress just released the conference report on the National Defense Authorization Act for Fiscal Year 2020. The full report is available here. A summary is available here.

There are more than two dozen provisions in the legislation that will affect military justice. Three particularly notable ones are:

Section 531. Expansion of pre-referral matters reviewable by military judges and military magistrates in the interest of efficiency in military justice. The Military Justice Act of 2016 created a new Article 30a allowing military judges or military magistrates (a newly-created position under Article 26a) to conduct proceedings prior to referral of charges for the purpose of addressing investigative subpoenas, orders for electronic communications, and matters referred by an appellate court. Section 531 of the conference NDAA adds two additional categories of matters that may be addressed: (1) appointment of an individual to assume an alleged victim’s rights under Article 6b(c) and enforcement of an alleged victim’s rights under Article 6b(e); and (2) matters related to pretrial confinement of an accused, an accused’s mental capacity and responsibility, and an accused’s request for individual military counsel. The President may, however, limit the matters that may be addressed and the relief that may be granted in pre-referral proceedings.

Section 532. Command influence. Article 37 prohibits unlawfully influencing the action of a court, and influence was our #5 Military Justice Story of 2017. The conference NDAA significantly changes Article 37. If enacted, the new Article 37 will read:

[words in italics are new]

Article 37. Unlawfully influencing action of court Command influence.

(a)

(1) No court-martial convening authority, 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 exercise of its or his functions in the conduct of the proceeding.

(2) No court-martial convening authority, nor any other commanding officer, may deter or attempt to deter a potential witness from participating in the investigatory process or testifying at a court-martial. The denial of a request to travel at government expense or refusal to make a witness available shall not by itself constitute unlawful command influence.

(3) No person subject to this chapter may attempt to coerce or, by any unauthorized means, attempt to influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority or preliminary hearing officer with respect to such acts taken pursuant to this chapter as prescribed by the President.

(4) Conduct that does not constitute a violation of paragraphs (1) through (3) may include, for example—

(A) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing persons on the substantive and procedural aspects of courts-martial;

(B) statements regarding criminal activity or a particular criminal offense that do not advocate a particular disposition, or a particular court-martial finding or sentence, or do not relate to a particular accused; or

(C) statements and instructions given in open court by the military judge or counsel.

(5)

(A) Notwithstanding paragraphs (1) through (3), but subject to subparagraph (B)—

(i) a superior convening authority or officer may generally discuss matters to consider regarding the disposition of alleged violations of this chapter with a subordinate convening authority or officer;

(ii) a subordinate convening authority or officer may seek advice from a superior convening authority or officer regarding the disposition of an alleged offense under this chapter.

(B) No superior convening authority or officer may direct a subordinate convening authority or officer to make a particular disposition in a specific case or otherwise substitute the discretion of such authority or such officer for that of the subordinate convening authority or officer.

(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade advanced in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member as a member of a court-martial, or (2) give a less favorable rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any accused before a court-martial person in a court-martial proceeding.

(c) No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section unless the violation materially prejudices the substantial rights of the accused.

(d)

(1) A superior convening authority or commanding officer may withhold the authority of a subordinate convening authority or officer to dispose of offenses in individual cases, types of cases, or generally.

(2) Except as provided in paragraph (1) or as otherwise authorized by this chapter, a superior convening authority or commanding officer may not limit the discretion of a subordinate convening authority or officer to act with respect to a case for which the subordinate convening authority or officer has authority to dispose of the offenses.

The new Article 37 would take effect on the date of enactment and apply only to offenses committed on or after that date.

Section 537. Guidelines on sentences for offenses committed under the Uniform Code of Military Justice. This section requires the Secretary of Defense to develop nonbinding sentencing guidelines that will “provide the sentencing authority with a suggested range of punishments, including suggested ranges of confinement, that will generally be appropriate for a violation of each offense under such chapter.”

6 Responses to “Congress releases conference report on the FY20 NDAA with many military justice provisions”

  1. Nathan Freeburg says:

    Article 30a has barely been used.
    Doing away with UCI on the other hand….
    Sentencing guidelines…well. Likely not good.  We already give far longer sentences than every other civilized country….in civilian practice.
    SVCs/VLCs for DV cases I’m already seeing (of course they are often cooperating with the defense counsel).
    Increasing the number of CID/AFOSI/NCIS investigators isn’t going to speed up clearing 120 investigations.  The backup is at USACIL etc.
    Additional training for commanders at all levels on 120 cases (but not other MJ matters) is only going to make VD more interesting as will additional training for all service members on 120 type matters. 
    The requirement for a report on an alternate system for preferral and referral of 120 cases where an independent O6+ JA with “significant criminal litigation experience” makes the decision is rather hilarious.  The Air Force will say “yeah, we can do it” because they already have judges as PHOs in 120 cases.  The other services (which don’t have the same ratio of lawyers to cases) will say it’s impossible because almost the only O6s with significant criminal litigation experience are judges.  (Or they may seize the opportunity to say that they need 30 more O6 billets each in order to effectuate the system.)  Conference report seems to be aware of the equal protection issues as well.
     

  2. Ryan Coward says:

    Here is a question.  What specialty bars are out there interacting with congress and/or testifying in support of, or against, these changes that we’ve seen over the past few years?  For example, the ABA or the National Criminal Defense Bar Association regularly lobbies and testifies in support of, or against, various legislation.  It doesn’t seem to me as if there is any organization, other than victim-centered-organizations, doing this in the military justice arena.  But maybe I’m wrong.  What say you all? Who is out there doing this work?  And if there isn’t anybody, maybe it’s time to get something going. 

  3. Vulture says:

    Beautiful question R.C.  Where did this come from?  I’ve written my senators and reps before on sub-jurisdictional cases.  Then they went the other way.  So, beyond a Scholarship Saturday article, where does Congress get the idea that there needs to be less prohibition on UCI?
     
    Does this make sense?  A report of massive failure by command in our longest war, and they are rewarded with less responsibility.  Doesn’t Congress realize that the same gung-ho’s that were screwing around for the last decade and a half, are now the ones that are in charge?
     
    It kind of makes me agree with CD.  There has to be a way to end the wars faster.

  4. Tami a/k/a Princess Leia says:

    I think we need to argue that the system is now unconstitutional.  With the push for the military justice system to be virtually a carbon-copy of federal district courts, and making changes that favor the Government and alleged victims, without providing any protections in the federal system for the accused to balance things out, we have lost our justification for having a separate system.  So heck with it, leave military justice to deal with pure military crimes, and let the federal system handle the rest of it.

  5. Nathan Freeburg says:

    Tami, I file that exact motion in every 120 case. As for who is advising Congress, my understanding is that some retired O-6 judge advocates work for the committees. 
    Of course, because they don’t know what they are doing, a fair amount of these changes lead to acquittals. As trial results demonstrate. 

  6. Anonymous says:

    Yeah, we all know Don Christensen.